Hon. George Peter Kaluma v The Standard Group Limited & 3 others

Below the belt: But mheshimiwa says women have turned child support into brisk business, P4” 5. The Plaintiff averred that at page 4 and 5 of the Nairobian of June 14,2018, the Defendants falsely and maliciously wrote and published regarding the plaintiff, his family and children that: “ We both sought treatment for kaswende- former wife Homabay MP Peter Kaluma’s former wife claims in her court papers that the politician infected her with Kaswende. Martha Ojera, who was Kaluma’s wife for five years, says in a sworn affidavit filed at the Nairobi Court and received on April 11, 2015 that the MP infected her with a sexually transmitted disease when they lived together and that they sought treatment together. Ojera and Kaluma have 2 children for whom she has sought support which has accrued to Ksh. 900,000 since 2016. Kaluma in his replying affidavit didn’t counter the kaswende claims, but insisted he is broke and filed his payslip in court to prove he can only cater for the child’s education and health. …” 6. It was averred that by the said words, the Defendants published details of and concerning the Plaintiff’s children and disclosed identities of the said children including their names, parents and years of birth thereby exposing the children, breaching their rights to privacy and personal dignity. Consequently, subjecting the children to embarrassment, scandal, public ridicule and psychological torture from their peers at school. 7. The said publication, bearing the photo of the Plaintiff both as a Member of Parliament and an advocate was widely circulated and published on the 1st Defendant’s various social media platforms as at 18th September 2018 at 9.00am, the KTN Facebook account had attracted 17 likes, 4 comments and 1 share and SDE account had attracted 50 likes, 2 comments and 1 share. 8. It was averred that the said words in their natural ordinary meaning and by inference or innuendo the Defendants meant and were understood to mean that the Plaintiff not only had kaswende but had also infected Martha Ojera with kaswende. It also portrayed the plaintiff as an irresponsible person of low and loose morals, a depraved man who engages in random sexual relations with multiple women. 9. The plaintiff averred that the publication was false as he had never suffered from kaswende as alleged in the publication and neither was Martha Ojera his former wife as alleged. Therefore, the Defendant published the said words out of malevolence, spite and malice towards the Plaintiff. In that, the Defendant thoughtlessly published unconfirmed claims by a party to a suit before a court of law without taking any reasonable steps to verify their truthfulness. It was also averred that the Defendants, by making the publication, assassinated the Plaintiffs image, character and reputation as a bait to attract and increase the readership of the Nairobian and the viewership of the Defendants digital/ online media platforms with a view to increasing their profits for the sale of the said paper and from media advertisements. 10. The Defendants denied the claim through their statement of defence dated 7th November 2018 where they averred that the words complained of were fair comment on matters of public interest hence justified. 11. It was averred that the publication was on a matter that was in the public domain concerning allegations that the Plaintiff had introduced a Bill in Parliament for his own benefit. Therefore, the Defendants were under a social duty to publish the article to the general public. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 2

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12. The natural and ordinary meaning ascribed to the publication was true in substance and fact for the reason that the Plaintiff is an elected MP for Homabay Town , an advocate of the High Court of Kenya, facing child maintenance cases in court including claims by both Martha Ojera and Monica Gitau, and that the Plaintiff introduced a Children amendment Bill in parliament seeking to amend section 24 of the Children’s Act and the same was rejected. 13. The matter proceeded to trial on 2nd July 2024 whereby the Plaintiff testified as PW1. He testified that he is an advocate of the high court of Kenya of 23 years and a third term Member of Parliament for Homabay Town. He relied on his sworn witness statement as well as bundle of documents, which he adopted in evidence. 14. He testified that the article published by the Defendants had been picked by different bloggers who posted the publication on various platforms. Consequently, injuring his reputation, hurt his children and family in unmeasurable standards. Following the article, his daughter fought with a learner in school who had mocked her that her father, the plaintiff, had kaswende. He was subsequently forced to transfer her daughter from Makini School to Kabarak Primary School. He also had to transfer his son from Maseno School to Hillcrest Secondary School where he was paying school fees of close to one million (kshs.1,000,000) per term. It was his contention that had the Defendants undertaken due diligence, they would have known that the Plaintiff was living with the children and adequately providing for them. He also clarified that despite the Communication and Media appeals tribunal ordering the Defendants to issue an apology to the Plaintiff, no such apology has been issued. Instead, the Defendants continue to publish the article. He maintained that he is only married to one wife. 15. He admitted knowledge of Children Case No. 237 of 2008 where Martha Akinyi Ojera had sued him for child maintenance while alleging that he had infected her with syphilis. Despite denying the averments by the said Martha, the Defendants went ahead to publish the article on the basis that the Plaintiff had not specifically controverted the claims of infecting the said Martha Ojera with kaswende. The assertion that Martha was his wife was equally malicious. He admitted that whereas he sired two children with the said Martha Ojera, she was never his wife. 16. The Plaintiff also clarified that he had proposed the amendments to the Children Act to align it with Article 53 of the Constitution which requires joint parental responsibility. 17. Anthony Ndiema testified as DW1. He testified that he is a media practitioner with Standard Media Group in charge of radio station as program controller. He adopted his witness statement and bundle of documents in evidence. He maintained that the publication in question was fair comment with no malice as the same was informed by the pleadings filed in the Children’s case. He also testified that although he did not specifically author the story, the top ten searches of the Plaintiff do not result in the story as the searches are not available online. He clarified that although he has been with Standard media group for six years, at the time of the publication he was not with the Standard Group. 18. When it was put to the witness that there was no sworn affidavit dated 11.04.2015 as stated in the article, he said that he was not sure. He insisted that the publication was true as it was based on a court case whose existence had been admitted by the Plaintiff. 19. At the close of the defence case, the court directed the parties to file submissions. 20. The gist of the Plaintiff’s submissions was that the Communications and Multimedia Appeals Tribunal had indeed found that the article was unjustified and published maliciously as they brought the character of the plaintiff into spite and that the identity of the children was disclosed contrary to the law. Therefore, the defence of justification was not available to the Defendants as the publication https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 3

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comprised false statements. Reliance was placed on the case of Machira t/a Machira & Co Advocates vs East African Standard [2001]KLR 638. 21. It was further submitted that the publication violated the rights of the Plaintiff’s children contrary to Article 28, 31, 33 (3) and 53 (2) of the Constitution. 22. The Plaintiff also submitted that the published words referred to him, they were false and malicious in their literal, natural and ordinary meaning and had caused him to suffer injury, harm and damage to his reputation. Including his children, wife and family. Therefore, he prayed for an award of general damages. He also sought aggravated damages of Kshs. 500,000,000 to compensate and vindicate him against the acts of the defendants, who had failed to render an apology to the plaintiff upon demand and notice of intention to sue being issued. As well as in total disregard to the order in Tribunal Case Number 4 of 2018 George Kaluma v The Standard Media Group. 23. The Plaintiff also prayed for exemplary damages to punish the Defendants and deter their conduct in future whether by them or other parties. Reliance was placed on Standard Media v Kagia & Co. Advocates [2010] eKLR. 24. The Defendants submissions were premised on the fact that the Plaintiff had failed to prove the elements of the offence of defamation. Reliance was placed on the Court of Appeal decision in Selina Patani & another v Dhiranji v Patani [2019] eKLR. 25. It was also submitted that the publication was not defamatory as the statements were lifted from the Plaint filed in court by Martha Ojera in Children’s Case No. 37 of 2008. Reliance was placed on the Court of Appeal decision in SMW v AWM [2015] eKLR. 26. Ultimately it was submitted that the defence of fair comment and justification were available to the Defendant. The plaintiff being a state officer, it is in the public interest that he be open to publications on the conduct of his life. 27. The Defendants therefore urged that the claim be dismissed with costs. 28. The Court has considered the evidence on record and the parties’ respective submissions. The court must determine whether the Plaintiff has proved his case on a balance of probabilities and if so, the appropriate quantum of damages to be awarded. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act which provides that: 29. 1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side…. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” The Court of Appeal stated in Wareham t/a A.F. Wareham & 2 others v Kenya Post Office Savings Bank “ ... in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or nonexistence of the facts in issue or facts relevant to the issue. It follows from those principles https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 4

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that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” 30. As concerns the rationale behind the law of defamation the Court of Appeal had this to say in Musikari Kombo v Royal Media Services Limited [2018] eKLR: “ The law of defamation is concerned with the protection of a person’s reputation. Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25.1 expressed himself in the following manner: The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: 'As a general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction…’ Defamation protects a person's reputation that is the estimation in which he is held by others; it does not protect a person's opinion of himself nor his character. 'The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit' and it affords redress against those who speak such defamatory falsehoods…” 31. The plaintiff maintained that he had by his testimony proved that he had been defamed by the defendants and that there exists without a shadow of doubt defamation that maliciously and falsely libels and slanders the plaintiff arising from the statements made by the Defendant in their publication. 32. The plaintiff sought damages of up to Kenya Shillings Five hundred million (500,000,000) for defamation, the said damages awardable as solatium and vindication for the loss of reputation, for injured feelings, for violation of his children’s privacy and family privacy, and to enable the plaintiff to protect himself against future calumny or outrage of a similar kind while punishing and deterring the defendants never to repeat such conduct of defaming him again. 33. The defendant on the other hand, despite their admission that they published the impugned information, they nonetheless denied that the said publication were defamatory of the plaintiff. The defendants maintained that the information they disseminated was justified for being fair comment that emanated from a case filed in court, that the Plaintiff himself had admitted. Further, the defendant maintained that since the plaintiff is a public officer, the publication was made in the public interest to inform the public on the alleged conduct of a public officer who had made proposals to amend the Children Act, that could be construed as being for his own personal interest. The defendant also contended that there was no evidence of malice on the part of the defendants in publishing or broadcasting the impugned information. 34. From the above summary of the case herein as presented to court, it is important to set out the various principles of the law of defamation, in order to decide on the main issue of whether the impugned publication was defamatory of the plaintiff and whether the said publication was made maliciously. 35. Article 32(1) of the Constitution is clear that every person has the right to freedom of conscience, religion, thought, belief and opinion and further provides that the freedom to express one’s opinion is a fundamental freedom. Under Article 33(1) (a) every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, clause (3) provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. This, in my view, is the constitutional fulcrum of the law of defamation. 36. Accordingly, the law of defamation is not just anchored on a statutory enactment under the Law of Defamation Act but has been given a constitutional underpinning as well. In a claim predicated on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 5

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tort of defamation the Court is therefore under a duty to balance the public interest with respect to information concerning the manner in which public affairs are being administered with the right to protect the dignity and reputation of individuals. 37. In Selina Patani & another v Dhiranji V Patani (2019) eKLR’s the court remarked that the law of defamation is concerned with the protection of reputation of persons, that is, the estimation in which such persons are held by others. In that case, the Court of Appeal stated that: “ In rehashing, we note the ingredients of defamation were summarized in the case of John Ward v Standard Ltd HCC 1062 of 2005 as follows: i. The statement must be defamatory. ii. The statement must refer to the plaintiff. iii. The statement must be published by the defendant. iv. The statement must be false. 38. In the instant case, there is no dispute regarding ingredient (ii) and (iii) above as the Defendant readily admits to publishing the articles in question and that they were in reference to the Plaintiff. The issues in dispute are whether the articles as published are defamatory and false; or whether they consist of a fair and accurate report of committee proceedings regarding matters of public interest hence covered by qualified privilege pursuant to section 7 of the Defamation Act. This court proposes to deal with the issues concurrently. 39. Were the Defendant’s publications defamatory? A defamatory statement is defined in Halsbury’s Laws of England 4th Edition Vol 28 paragraph 10 as: “ ….a statement which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business”. 40. In Musikari Kombo (supra) the Court of Appeal stated that: “ The test for whether a statement is defamatory is an objective one. It is not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. In Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 the authors opined: “In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.” 41. The Plaintiff pleaded in his plaint and testified that the publication was defamatory in the natural and ordinary meaning in that it was imputed therein that he was inter alia immoral and unable to take care of his own children hence the proposals he made to amend the Children Act. Consequently, he complained to the Communications and multimedia appeals tribunal which found the publication malicious and ordered the defendant to apologize. Nevertheless, the defendant refused to render the said apology. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 6

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42. Looking at the statements made by the Defendant, notwithstanding the fact that they were reporting on a case that was active in court, it is clear that in their plain meaning, the statements had a defamatory whether or not they were believed by the people to whom they were published. The publication was meant to demonstrate that the Plaintiff was unfairly using his public office as a Member of Parliament to solve personal challenges. That the plaintiff had made proposals to amend the Children Act since he was having a personal challenge in maintaining his own children. Moreover, the publication also demonstrated that the Plaintiff not only had Kaswende but had also infected one Martha Ojera with Kaswende. 43. The next question to address is whether publications are covered by fair comment and qualified privilege? I do not think so. First, the statements referring to the Plaintiff were passed off as factual and therefore the defence of fair comment is unsustainable because that the basic facts upon which such comment could have been based were false. 44. The Plaintiff contended that the Defendant had the duty to verify the allegations in the Pliant before publishing that the Plaintiff had proposed a Bill for his own benefit. In any case, DW1 was unable to avail the affidavit that had allegedly provided the information that the Defendant relied on. Further, there was no evidence that the pleadings filed in Children Case No. 237 of 2008 made reference to Kaswende, instead, Martha Ojera had merely referred to a venereal disease without labelling it. 45. Therefore, the defendants’ contention that the Plaintiff had kaswende was false and without any basis. 46. As regards, the defence of qualified privilege under section 6 of the Defamation Act , it was held in Adam v Ward (1917) AC 309 that: “ A privileged occasion is, in reference to qualified privilege an occasion where the person who makes the communication has an interest or duty, legal, social or …. to make it to the persons to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.” 47. No doubt, the matters arising from Children Case No. 237 of 2008 were of public interest as the Plaintiff is a public officer, a Member of Parliament for Homabay Town, and the Defendant had a duty to report them for the interest of the public. However, as stated in Dorcas Florence Kombo v Royal Media Services [2014] eKLR: “ --- qualified privilege can be rebutted by proof of express malice, and malice in this connection may mean either lack of belief in the truth of the statement or the use of the privileged information for an improper purpose.” 48. In the instant case, the information on court pleadings that were filed in 2008 were published in 2018 (ten years later) to portray the Plaintiff as one who was unfairly using his office an MP for personal benefit in proposing the amendments to the Children Act on parental responsibility. This was made notwithstanding the fact that the proposals made by the Plaintiff were made in his capacity as Member of Parliament and with a view to enforce Article 53 of the Constitution. 49. There was no correlation between the legislative role of the Plaintiff and the court case that had been filed in 2008 on maintenance of children. 50. The Plaintiff asserts that the Defendant acted maliciously inter alia by failing to verify the statements before publication, and by publishing the names of the plaintiff’s children thereby unfairly violating their privacy and exposing them to ridicule them to ridicule and vilification from their peers. Although https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 7

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the effect of the publication on the children was not supported by evidence, the fact that the children’s names were published was contrary to the best interest of the child principle. Moreover, when the Defendant was found liable for malicious publication by the Communication and Media Appeals tribunal, they refused to render an apology as ordered, instead insisting that the publication was fair comment. 51. The Code of Conduct for the Practice of Journalism provides for: “ Accuracy and fairness (1) made under the Media Council Act provides that; 52. (1). A person subject to this Act shall write a fair, accurate and an unbiased story on matters of public interest. (2) All sides of the story shall be reported, wherever possible. (3) Comments shall be sought from anyone who is mentioned in an unfavorable context and evidence of such attempts to seek the comments shall be kept.” In Phineas Nyagah v Gilbert Imanyara [2013] eKLR the court held that: “ Malice here does not necessarily mean spite or ill will but recklessness itself may be evidence of malice. Evidence of malice maybe found in the publication itself if the language used is utterly beyond or disproportionate to the facts. …. malice may also be inferred from the relationship between the parties before or after the publication or in the conduct of the defendant in the course of the proceedings. Court should however be slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsely.” 53. In Uhuru Muigai Kenyatta v Baraza Leonard [2011] eKLR the Supreme Court stated: “ While taking the defence of justification, or qualified privilege in a defamation case, the defendant was required by law to establish the true facts and the plaintiff has no burden to prove the defence raised by the defendant. Once verified, the justification or qualified privilege does not inure the defendant and in any event, the onus that the same is true rests on the defendants to make it a fair publication.” 54. Reviewing all the material before it, the court is of the view that the Defendant acted in a reckless manner by failing to verify the statements against the Plaintiff before publication, and by presuming that the venereal disease referred to was kaswende; and even when ordered to render an apology to the Plaintiff, failed to do so. Instead, the Defendant insisted that the Plaintiff being a public officer, ought to have been open to such publications about him being made. This court finds that the Defendant is liable for libel. 55. I also find that the Defendant aggravated the violation by first failing to apologize when required by the Tribunal to do so and secondly, by publishing the names of the Plaintiff’s children thus violating their privacy contrary to the best interest of the child principle for which also find them liable. 56. Turning now to damages, the purpose of awarding general damages in a libel action is to compensate the plaintiff for the damage done to his reputation and the court has wide discretion, depending on https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 8

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the peculiar circumstances of the case before it. See CAM v Royal Media Services (2013) eKLR. In the oft-quoted case of John v MGM LTD (1997) QB 586 it was held that: “ In assessing damages for injury to reputation, the most important factor is the gravity of the libel, the more closely it touches the plaintiff’s personal integrity, professional reputation, honor, courage, loyalty and the core attributes of personality the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has greater potential than a libel published to a handful of people.” 57. Superior courts in this country have adopted and applied the principles spelt out in Jones v Polland (1997) EMLR 233-234, to the effect that: “ In relation to a claim for libel the court should take into account the objective features of the libel itself, such as its gravity, its prominence, the circulation of the medium in which it is published and any repetition, subjective effect on the plaintiff’s feelings not only from the prominence itself but from the defendant’s conduct thereafter both up to and including the trial itself, matters tending to mitigate damages for examples publication of an apology, matters tending to reduce damages, vindication of the plaintiff’s reputation past and future. In situations where the author or publisher of a libel could have with due diligence verified the libelous story or in other words, where the author or publisher was reckless or negligent, these factors should be taken into account in assessing the level of damages.” 58. In this case, the Defendant’s publication of the offending statements had a wide reach both through the online platform and print medium. Moreover, the publication was repeated, and the Defendant failed to verify the contents thereof. The Defendant published the names of the Plaintiff’s children thus violating their privacy and refused to issue an apology when required to do so. 59. No doubt the offending articles closely touched on the plaintiff’s personal integrity, professional reputation, and honor in an adverse manner. An advocate of relatively high professional experience and a Member of Parliament, the Plaintiff was cast as an irresponsible man unable to take care of his children, sexually immoral and infected with Kaswende and abusing his position as member of parliament to legislate for personal reasons. 60. That said, the award of kshs. 500,000,000.00 in general damages as urged by the Plaintiff is too high notwithstanding the prominence of the offending publications. In my considered view, the duration of the Plaintiff’s professional practice while relevant, should not be the sole yardstick of comparison with other cases involving similar professionals and should be not be applied as an isolated consideration. Besides, the award of damages in libel claims ought to be balanced against the need to keep damages at a reasonable level so as not to prevent the exercise of the right to freedom of expression in society. 61. On general damages for libel, I considered the societal standing of the plaintiff who going by his testimony and supporting evidence, is a three term Member of Parliament and an advocate of the High Court of Kenya. I have also considered the case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR in which the Court of Appeal upheld an award of Kshs. 5,000,000 made under this head. 62. In Balala v Nation Media Group Limited (Civil Suit 368 of 2011)[2022] KEHC 13961 (KLR)(Civ) (19 October 2022) (Judgment), the Court awarded Kshs.3,000,000.00 under this head for the Plaintiff who was a Cabinet Secretary and a former Member of Parliament. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 9

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63. In view of the above, I find that an award of Kshs.10,000,000.00 would be sufficient in light of the fact that the privacy of the Plaintiff’s two children were also infringed each in their individual capacity by the said publication and inflation due to the passage of time. 64. In this matter I do find that having had the opportunity to apologize but failed to do so, the defendant was in effect grand standing and therefore acted improperly. I do find that failure to apologize when demanded, justifies and award of damages. With such determination, I do award to the plaintiff exemplary damages in the sum of kshs.1,000,000. 65. Considering all the foregoing matters, the court is persuaded to award damages as follows: 66. a. General damages: Kshs. 10,000,000.00 b. Exemplary damages: Kshs.1,000,000.00 c. The Plaintiff is awarded costs of the suit and interest at court rates. Judgment is accordingly entered for the Plaintiff against the Defendant in the terms stated at hereinabove. DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 13TH DAY OF NOVEMBER, 2025. HON. T. W. OUYA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16632/eng@2025-11-13 10

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