SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Kenya: High Court

You are here:  SAFLII >> Databases >> Kenya: High Court >> 2007 >> [2007] KEHC 2

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Hon. Martha Karua v The Standard Ltd and Another (civil case 294 of 2004) [2007] KEHC 2 (24 April 2007)

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(NAIROBI LAW COURTS)
Civil Case 294 of 2004


HON. MARTHA KARUA ……………………….....…..…..…………… PLAINTIFF

 VERSUS

THE STANDARD LTD ………………………….….…..…… FIRST DEFENDANT
KWENDO OPANGA …………..…………………………SECOND DEFEDNANT


JUDGMENT

The Plaintiff filed this suit against both defendants claiming

“(a) Damages on the footing of aggravated or exemplary damages
(b) General damages
(c) An apology in terms of text approved by the Plaintiff to be published in a manner as prominent as the offending article.
(d) A permanent injunction to restrain the defendants jointly and individually, by themselves, their servants and or agents from publishing or continuing to publish articles libelous to the Plaintiff
(e) Costs of the suit
(f) Interest on (a) and (b) above”

The first Defendant is the publisher and printer of the “Sunday Standard,” a national newspaper with a very substantial circulation throughout the Republic of Kenya and elsewhere in the world and the said newspaper is also accessible on the Internet.

 The second Defendant is an editor, writer, reporter and columnist of the First Defendant and is an adult male residing and working for gain in Nairobi.
The Plaintiff is and was at all materials times an Advocate of the High Court of Kenya, a member of, parliament representing Gichungu constituency and a Cabinet Minister in the Government of the Republic of Kenya.

She told the court in her evidence that at the time of the publication of the article complained of, she was the Minister for Water Resources, Management and Development and that currently she is the Minister for Justice and Constitutional Affairs.

She was admitted as an Advocate of the High Court of Kenya in the year 1982 and, as a member of Parliament for Gichugu Constituency, she has held that position since 1992 and for the three terms she has been in Parliament, she has been elected with an overwhelming majority on each occasion.

She has received numerous accolades and awards for her outstanding role as a Human Rights and Woman Rights Activist, the awards including among others an award in 1991 from Human Rights Watch Global which is based in the United States of America; International Commission of Jurist Kenya (ICJ); Jurist of the year award 1999; Recognized by FIDA Kenya in 1999 and an Award from the Law Society of Kenya in the 1990s for her diligence in the issues of Law.

The Plaintiff added that she has served as a Council Member of the Law Society of Kenya and FIDA Kenya. For 10 years she was the chairperson of the League of Women Voters a Political Lobby Group for Women. While serving as a Minister for Water Resources Management and Development, she received commendations on three different occasions from the Head of State.

The Plaintiff went on to say that on the 4th January, 2004 she read an article in the “Sunday Standard’ titled “Bedroom Spells Danger for Kibaki State House.” The said article was on page 6 and was authored by the Second Defendant and it was closely related to the Headline of the paper which was titled “…as First Lady Clashes with ministers.” The headline story ran throughout pages 1,2,3,4, and 5, and culminated in the offending article on page 6, as can be seen in Plaintiff’s exhibit No.1

 I must point out here that the Plaintiff’s exhibit No.1 referred to here has pages 1, 5, and 6 only so that pages 2, 3 and 4 have been kept away from the court, suggesting articles on the kept away pages are not considered offensive.

Back to the Plaintiff’s case, her case against both defendants is therefore based on her complaint that on or about 4th January, 2004 at page 6 of “The Sunday Standard” newspaper, the Defendants and each of them falsely and maliciously authored, printed and published or caused to be printed or published words the Plaintiff considers to be defamatory under the banner headline “Bedroom Spells danger for Kibaki State House” as follows:-
“Is it, for example, true that Mrs. Kibaki ordered Cabinet Ministers Martha Karua and Charity Ngilu out of State House, Mombasa, because she was incensed by the Vice-President’s reference to her as second Lady?
Mrs. Kibaki is important because the marriage ring she wears was given to her by President Kibaki, but, unlike Ngilu and Karua, she is not an elected official of Government or State House.

If she is going to order ministers out of State House, she is going to alienate the President. It must be remembered here that President Kibaki appears to have made State House his office of choice.”
Those words, in paragraph 4 of the Plaintiff’s plaint are contained in Plaintiff’s exhibit No.1 being a copy of the relevant Sunday Standard newspaper; and in paragraph 5, as well as in her evidence before me, the Plaintiff stated that the offending phrases, though framed as a question, in their natural and ordinary meaning, meant and were understood to mean that the Plaintiff was at State House, Mombasa between 1st and 4th January, 2004 and was unceremoniously ejected from State House Mombasa by the First Lady, Mrs. Lucy Kibaki; as the Plaintiff was unwelcome and unwanted within the premises of State House, the Plaintiff having imposed her pressure upon the First Family who were at the material time holidaying in Mombasa. Further and in the alternative, the Plaintiff says that the said words bore and were understood to bear the meaning pleaded in paragraph 5 by way of innuendo.

 The Plaintiff says the Defendants knew or ought to have known that the Plaintiff was not in Mombasa and specifically at the State House during the Christmas Holiday of 2003 and New Year of 2004. The question posed by the Second Defendant in the offensive articles did not therefore arise as the words were uncalled for, lacked any factual basis, were libelous and recklessly made and calculated to disparage the Plaintiff professionally, politically and socially and were meant to implant in the minds of the readers that the Plaintiff has been ejected from State House Mombasa, which motive was based on malice.

It is the Plaintiff’s case that the article was published in a prominent and sensational manner and that having regard to Defendants’ past conduct, are likely to continue with publication of libelous articles unless restrained by the Court by an order of injunction.

She goes on to say that as a result of the said article, she has suffered loss and damage and has been greatly embarrassed and her credit, reputation and standing have been injured and brought to disrepute as a result of which she asks for the orders prayed for in the plaint.

The Plaintiff adds that when she read the article in question, she became shocked as she felt the defendants were deliberately generating a rumour. She was upset in her house in her constituency with her teenager children and other members of her family who knew she had not been at Mombasa and were therefore surprised by that article. She received several telephone calls from friends, other relatives and fellow members of Parliament asking why she had been thrown out of State House.

The following day she wrote a demand letter, P. exhibit 2, drawing the attention of the second Defendant to the article and pointing out to him that it amounted to libel and that she demanded an apology and admission of liability. She received no reply despite her, warning in the letter that if there were no reply, the Plaintiff would seek redress without further reference to the Defendants. In the second last paragraph, that letter states:
“This article in my view represents what has now became synonymous with the East African Standard that is; deliberate peddling of falsehoods against me with the sole intention of maligning me and injuring my standing credit and reputation in this regard I consider this an aggravation of the previous articles.”

 The Plaintiff has explained during the hearing of this case that what she complained about in the contents of that quotation had resulted into her filing of four civil cases against the First Defendant jointly with other members of the First Defendant’s staff. She has produced P.exhibit 3 and P. exhibit 4, copies of pleadings in HCCC No. 293 of 2004 and HCCC No.302 of 2004 respectively.

The Plaintiff does not agree with the Defendant’s statement in their defence that the words complained of were fair and true statements of fact or true in substance or consist of expression of opinion. She says the two Defendants had her contact telephones and could have easily checked and confirmed that she had not been at Mombasa.

That was the evidence adduced by the Plaintiff and to conclude the hearing, counsel on each side agreed to exchange and file written submissions to be followed by brief oral submissions. That was done.

In her submissions, the Plaintiff’s counsel follows the line taken in the Plaintiff’s evidence and adds that any imputation is defamatory if it tends to lower or adversely affect a person in the estimation of others or adversely affect any aspect of his/her reputation. Any imputation, which may tend to injure a person’s reputation in a business, employment, trade, profession, calling of office carried on or held by him is defamatory. Words are defamatory if they involve a reflection upon the personal character of the Plaintiff. It is submitted that the imputation in the article complained of was that the First Lady unceremoniously ejected the Plaintiff from State House Mombasa as she was unwanted and unwelcomed within the premises of State House and that she was scheming against the First Lady. The Plaintiff’s counsel says that the article was explicit that the Plaintiff was a person not capable of holding a public office and/or practicing as an advocate as her behaviour was unbecoming; and that since the Plaintiff’s evidence that she was not anywhere near Mombasa has not been controverted, it is manifest from the evidence that the words complained of in the offending article are untrue in every material respect and had been published maliciously.

Further, counsel submitted that under Common Law, defamatory imputation is presumed to be false and that the burden is upon the defendant to show that it is substantially true. The Defendant must also prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true even though it was published as belief only.

It was also submitted that in the face of non-opposition, and absence of contrary evidence, the Plaintiff’s evidence must be admitted in its entirety, that the Defendants published the offending article and it referred to the Plaintiff; that the publication was malicious as the Plaintiff was in Nairobi on the material day; that the offending article was published in a conspicuous and sensational manner; that there has been an aggravation of damage by failure to publish an apology; that the Defendants failed to call evidence to prove either limb of their averments in the defence that the words complained of consists of facts, were true in substance and in fact and that so far as they consist of expressions of opinion, they are fair comment on a matter of public interest. The Defendant’s defence must therefore fail.

It was also submitted that although section 7 of the Defamation Act provides for a defence of qualified privilege, that defence is vitiated by malice which the Defendants have not dispelled – because there is no evidence before the court that the Defendants made any inquiry to ascertain if the statement was correct and further when asked for an apology, no reply was forthcoming. Counsel concludes that this was clear indication that the statement was malicious and without foundation.

Counsel referred to “The Code of Conduct and Practice of Journalism in Kenya 2nd Edition” which she pointed out the Defendants failed to observe when writing the statement complained of.

 I will now look at the Defendants’ side. Although the Defendants filed a joint defence denying all the allegations made by the Plaintiff against each one of the Defendants, they elected not to be present – to give evidence during the hearing of this suit and no evidence was offered on their behalf. They were, however, represented by an advocate, Mr. Majanja from M/s Mohammed & Muigai Advocates, while the Plaintiff – came with her advocate, M/s Ndirangu of M/s S.W. Ndirangu & Company Advocates, during the hearing. Mr. Majanja cross-examined the Plaintiff who was the only witness in this suit. This court is entitled to look at that defence and consider their written submissions bearing in mind no evidence was adduced on the side of the defence.

Otherwise in their written statement of defence, Defendants jointly stated that they admitted publishing the article complained of but denied that the same was done either falsely and/or maliciously. They denied that those words were capable of bearing the meanings or any of the meanings ascribed to them in paragraph 5 of the plaint or even by way of innuendo as alleged in paragraph 6 of the plaint.

According to paragraph 5 of the plaint, the offending phrases, though framed as a question, in their natural and ordinary meaning they meant and were understood to mean; and I repeat them here because they are important

“(a) The Plaintiff was at State House, Mombasa between 1st and 4th January 2004.
(b) The Plaintiff was unceremoniously ejected from State House Mombasa by the First lady Mrs. Lucy Kibaki
(c) The Plaintiff was unwelcomed and unwanted within the premises of State House.
(d) The Plaintiff had imposed her pressure upon the First Family who were at the material time holidaying in Mombasa.”

In paragraph 6 of the plaint it says that further or alternatively to paragraph 5, the said words bore and were understood to bear the meaning pleaded in paragraph 5 by way of innuendo because, firstly the Defendants knew or ought to have known that the Plaintiff was not in Mombasa and specifically at the State House during the Christmas Holiday of 2003 and New Year season of 2004; secondly, the Plaintiff having not been in Mombasa during the material time, the questions posed by the second Defendant in the offensive article did not arise; and thirdly, the Plaintiff had as a matter of fact not left Nairobi during the period stated in the article.

That is the conclusion of paragraph 6 of the plaint, but Defendants in their defence wanted strict proof by the Plaintiff, of what she was saying, including proof that the Plaintiff’s reputation has been seriously damaged and that she has suffered distress and embarrassment as alleged in paragraph 8 of the plaint; as they deny that the Plaintiff has suffered any injury known to law as a result of the article complained of or as alleged in paragraph 10 of the plaint or at all and aver that the plaintiff is not entitled to either general, exemplary and/or aggravated damages.

The Defendant averred that in so far as the words complained of consist of statements of fact, they are true in substance and in fact and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest. They give particulars as required by order VI rule 6A of the Civil Procedure Rules stating that it is true “The First Lady was incensed by the Vice President’s reference to her as second Lady”; it is true that “The First Lady unlike the Plaintiff, is not an elected official of Government or State House”; it is fair comment to speculate on what the effect of the First Lady asking the Plaintiff to leave State House Mombasa would have on the President’s presidency; it is fair comment to say that “if (The First Lady) is going to order Ministers out of State House; she is going to alienate the President.” The Defendants said that in so far as was necessary, they were going to rely upon the provisions of section 14 and 15 of the Defamation Act Cap 36 Laws of Kenya.

 The Defendants said that since their activities are motivated by a sense of public duty and a desire to serve the Nation and they are never motivated by material gain in deciding upon their publication the article was published in the same manner as any other story and not in a prominent and sensational manner as alleged by the Plaintiff.

The Plaintiff, as a Cabinet minister and member of Parliament, the Defendants add, her actions are a matter of public Interest, Public concern and scrutiny. Kenyans as taxpayers have a right to know the whereabouts and activities engaged in by the Plaintiff in the discharge of her public duty. The Defendants are media operators, are exercising their constitutional rights in disseminating information with respect thereof to the Public. As such an injunction against them cannot issue as claimed or at all without derogating on their freedom of speech as enshrined in section 79 of the Constitution of Kenya.

The Defendants point out, and there is no evidence from the Plaintiff disproving this, that the Plaintiff has not made any attempt whatsoever to exercise her right of reply under section 7A of the Defamation Act to entitle the Plaintiff to be awarded, at the discretion of the court, an additional amount of damages together with the damages for defamation, if there were further evidence that the Defendants had failed or refused to publish the correction or the said reply or failed to give it the prominence required by section 7A.

In view of that failure by the plaintiff I may divert to look at subsection (7) of Section 7A which states as follows:-
“In any Civil Proceedings for libel instituted by a person or body of persons entitled to a right of reply who or which has failed to exercise such right in accordance with the section, the court shall, in the event of it having found in favour of the Plaintiff, be at liberty to reduce the amount of damages which it would have otherwise awarded by such sum as the court considers appropriate having regard to all circumstances of the case.”
Compliance with section 7A aforesaid, should not be confused with what the Plaintiff says she did as stated in paragraph 12 of the plaint - making demand for apology and amends and giving notice of intention to sue. There is evidence confirmed by Plaintiff exhibit No.2, that the Plaintiff demanded an apology and admission of liability. There is no evidence she also demanded “amends” as stated in paragraph 12 of the plaint. Evidence has been adduced further by the Plaintiff that the Defendants ignored the demand for apology and admission of liability. Hence the filing of this suit.
In my opinion, I think this was a right case where a reply was relevant and reasonable and the Plaintiff ought to have exercised her right of reply under section 7A within fourteen days from the date of publication of the statement complained of. The section makes it mandatory that the right of reply “shall not be exercisable after a period of six months from the publication of the relevant damaging material;” and that seems to suggest that leave of the court may be sought if the right of reply is intended to be exercised after the expiration of 14 days and before the expiration of six months.

 Back to the defence of the Defendants, I said earlier that no evidence was adduced by the Defendants during the hearing to buttress their filed written defence. However the Defendant’s Advocates filed written submissions stating as follows:

The Defendants contend that the Plaintiff is not entitled to the reliefs sought. In order to determine whether the words complained of, in their natural and ordinary sense tend to lower the reputation of the Plaintiff in the eyes of right thinking members of society, the court must look at the whole article to appreciate its full import and tenor as that is what a right thinking member of society would do.

The article was, in essence not so much about the Plaintiff as it was about exploring the extent to which the personal lives of prominent people in Public Offices affects the discharge of their public functions. The article was making a case for the proposition that what happens on President Kibaki’s domestic front can affect the way Kenya is governed and the reference to the Plaintiff was made only in passing, and it was one of the many examples cited by the publisher.

In particular, the articles sought to interrogate the role of the First Lady in a democratic state. In order to articulate the issue with greater clarity, the author poses the question whether it was true, for example, that the First Lady ordered Cabinet Ministers Martha Karua and Charity Ngilu out of State House, Mombasa, because she was incensed by the Vice President reference to her as Second Lady. The author went on to say “Mrs. Kibaki (meaning the First Lady) is important because the marriage ring she wears was given her by President Kibaki, but unlike Ngilu and Karua, she is not an elected official of Government or State House.”
The Defendant’s Counsel goes on to point out that understood in the context of the article as a whole, it is clear that the author is inviting the public to make available contribution to the important debate on the scope and obstacles of democracy in government, which is one of this Country’s constitutional principles, a debate which should be welcome in any civilized society.

It is further pointed out in the submissions that when viewed in the proper context, it is clear that the author of the article did not seek to defame the Plaintiff. On the contrary, it is apparent that the author’s view is that a Cabinet Minister, who has the legitimate, democratic mandate to access State House, should not be denied such access merely because the person so restraining her/him is the President’s wife.

The second Defendant does not say that the Plaintiff was actually ejected unceremoniously from State House, nor does he say that the Plaintiff had an argument with First lady. The article only poses the rhetorical question in order to steer a wider and more fundamental debate. The author simply uses the scenario to advance the argument. The truth or otherwise of the details of whether the incident actually transpired as reported is neither here nor there. It is immaterial. The submissions continue:

“The Defendants do not assert that the words are true, but it is submitted that whether they are false or not is NOT an important matter for Your Lordship’s consideration, as far as the issue evaluating the defamatory content of the words is concerned.”

 I will rest there submissions filed by the Defendant’s counsel. I must say that each counsel has said more in respective submissions and I have the feeling my Judgment may not be easily understood if I were to include everything said on each side. I am however very grateful to both learned counsel for their canvassing and evaluation of the facts and evidence before the court, exposition of the relevant law and supply of useful material. In concluding this Judgment, I will be looking at all those things.

To start with, I note what counsel for the Plaintiff said in paragraph 4 at page 2 of her written submissions that

on the 4th January,2004 the Plaintiff read an article in the Sunday Standard titled “Bedroom Spells danger for Kibaki State House.” The said article was on page 6 and was authored by the 2nd Defendant and it was closely related to the Headline of the paper, which was titled “The First Lady had clashes with the Minister” The headline story ran throughout pages 1,2,3,4,5, and culminated in the offending article on page 6 (Plaintiff’s Exhibit 1.)
That is what counsel for the Plaintiff said and related to that, the Defendants’ counsel in his written submissions also paragraph numbered 4 on page 2 says that in order to determine whether the words complained of, in their natural and ordinary sense tend to lower the reputation of the Plaintiff in the eyes of right thinking member of society, the court must look at the whole article to appreciate its full import and tenor because that is what a right thinking member of society would do.
Putting together what both learned counsel are saying, it follows that there wasn’t only a single article. There were other related articles which could be seen by eyes of right thinking members of society as those eyes run through pages 1,2,3,4,5, and 6 of the “Sunday Standard” dated 4th January, 2004. While counsel for the Defendants seems to have no regard for the other related articles and therefore confines himself to the article authored by the second Defendant from which the passage containing the words complained of were taken by the Plaintiff, counsel for the Plaintiff as well as the Plaintiff herself, recognize the presence of the other related articles but for the purpose of their case, have chosen to use a passage in one of the related articles; a passage and not the whole article, authored by the second Defendant. It is therefore the Plaintiff’s case that the court looks at the passage complained of only in order to decide that there was defamation. On the other hand, it is the Defendant’s case that the court looks at the whole article written by the second Defendant to decide whether there was defamation. I may then ask: how about the related articles which the eyes of the ordinary, reasonable, fair minded, or in short, right thinking member of society, have also seen? The articles are related and the right thinking member of society having read all of them because they are related and his eyes could not rest until after reading all the articles, would definitely come out with knowledge or opinion better than the knowledge or opinion conceived by a member of society who confined himself to the passage complained of only or confined himself to the article authored by the second Defendant only. Admittedly, however, the one who has read the whole of the article authored by the second Defendant is better informed than the one who has read the passage or words complained of only.
In the case of Charleston and Another v. News Group Newspaper Ltd and Another (1995) 2 AII E R 313, it was unanimously held by the House of Lords that
“A prominent headline or a headline and photograph could not found a claim in libel in isolation from the related text of an accompanying article which was not defamatory when considered as a whole, because it was contrary (i) to the law of libel for a plaintiff to sever, and rely on, an isolated defamatory passage in an article if other parts of the article negated the effect of the libel and (ii) to the principle that if no legal innuendo was alleged the single natural and ordinary meaning to be ascribed to the words of an allegedly defamatory publication was the meaning which the words taken as a whole conveyed to the mind of the ordinary, reasonable, fair-minded reader. Accordingly, a plaintiff could not rely on a defamatory meaning conveyed only to the limited category of readers who only read headlines.”
It was said that there is a long and unbroken line of authority the effect of which is accurately summarized in Duncan and Neill on Defamation (2nd edition, 1983) p 13, para 411 as follows:
“In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage.”
That was a quotation in the judgment of Lord Bridge of Harwich who wrote the leading judgment in Charleston And Another v. News Groups Newspapers Limited And Another (ibid). He went on to say that the locus classicus is a passage from the judgment of Alderson 13 in Chalmers v Payne [1835] 2 Cr. M & M 156 at 159, 150 ER 67 at 68 where it is said:
“But the question here is, whether the matter be slanderous or not, which is a question for the jury who are to take the whole together, and say whether the result of the whole is calculated to injure the Plaintiff’s character. In one part of this publication, something disreputable to the Plaintiff is stated, but that is removed by the conclusion; the bone and antidote must be taken together.”
His Lordship went on to say:

“It is often a debatable question which the jury must resolve whether the antidote is effective to neutralize the bone and in determining this question the jury may certainly consider the mode of publication and the relative prominence given to different parts of it. I can well envisage also that questions might arise in some circumstances as to whether different items of published material relating to the same subject matter were sufficiently closely connected as to be regarded as a single publication.”
In my view such questions as are envisaged in the last part of the above quotation have arisen in this case before me and that is why I earlier posed the question:

How about the related articles which the eyes of the ordinary, reasonable and fair-minded member of society have also seen?

Those articles or news items relate to the same subject matter and in my view are sufficiently closely connected as to be regarded as a single publication to be considered as a whole in order to determine whether words in the passage complained of are defamatory.