Macharia v Sauti ya Mwananchi Radio (Civil Case 100 of 2014) [2014] KEMC 16 (KLR) (2 October 2014) (Judgment) Neutral citation: [2014] KEMC 16 (KLR) REPUBLIC OF KENYA IN THE NYAHURURU LAW COURTS CIVIL CASE 100 OF 2014 PA NDEGE, AG. PM OCTOBER 2, 2014 BETWEEN LUCY MUTHONI MACHARIA .............................................................. PLAINTIFF AND SAUTI YA MWANANCHI RADIO ...................................................... DEFENDANT JUDGMENT 1. The plaintifi herein, Lucy Muthoni Macharia, is a volunteer children's oficer based at Wanjohi. She has been a volunteer children's oficer for the last 7 years. 2. On or around 22/03/2014, during a new broadcast by the defendant herein, Sauti Ya Mwananchi Radio, in one of its program, the defendant broadcasted and or published in Kiswahili language to radio listeners, who included, PW2, Jackson Wanjoki Njuguna, PW2, Nicholas Kimani Njehia and PW4, Jerioth Wangui Gitingo, who knew and understood the Kiswahili language the following words that were defamatory of the plaintifi: Huku ikibainika kuwa mwanamke mmoja katika eneo la Wanjohi alikuwa akiwaibia mayatima zaidi ya shillingi elfu thelathini kila mwezi... Siri hii ilitoka jana baada ya kituo hiki kumuekea mtego mwananmke huyo kwa jina Lucy Muthoni Macharia na kumnasa peupe. Kwenye duka moja kwa jina Imani Ya Bwana tulimpata akipokea shillingi elfu moja kutoka kwa kila mmoja wa mayatima aliyepokea pesa kutoka katika kituo cha kiwakala cha benki ya Equity mjini Wanjohi... Baadhi ya wanachama hao walitaka mwanamke huyo kukamatwa na kufunguliwa mashtaka ya wizi wakisema wako tayari kutoa shahidi... Wanadai kwamba kwa muda wa miaka sita sasa amekuwa akiwadhulumu huku akijifanya mshiriki mkuu wa mpango huo licha kuwa ni mtumishi wa umma. https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/16/eng@2014-10-02 1
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Kati ya hao walieleza kituo hiki kuwa sakata hii imehusisha afisa mkuu wa idara ya watoto katika sehemu hiyo, afisa wa utawala wa mkoa na askari mmoja wa A.P. 3. In the English translation, the said words read as follows:It has come out that one woman in the Wanjohi area has been stealing from orphans over thirty thousand shillings every month... The secret came out yesterday after this station laid a trap for the woman known as Lucy Muthoni Macharia and caught her red handed. In one shop by the name Imani Ya Bwana we caught her receiving one thousand shillings from each of the orphans who was receiving money from an agent of Equity Bank in Wanjohi Town... A few of the members sought for the arrest of the woman and she be charged with the ofience of theft saying that they were ready to testify... They claimed that for a period of six years she has been oppressing them while pretending to be the Chief Co-ordinator of the programme while she is a public servant. Some of them told this station that this scandal involves the head of Children Oficer of the area, a Provincial administrator and one Administration police oficer. 4. The broadcast was repeated severally prompting the plaintifi to record the same. She produced the transcript as PEXH. No. 1. 5. The said words were definitely defamatory of the plaintifi. In their natural meaning they mean and were understood to mean directly and by innuendo that: - 6. a. The plaintifi is a thief. b. The plaintifi is a corrupt person who was being bribed and should not be allowed to hold any public ofice. c. The plaintifi is a callous and heartless person who can steal from orphans and vulnerable persons. d. The plaintifi in conjunction with others is engaged in unlawful and fraudulent dealings in public afiairs. e. The plaintifi has committed serious criminal ofiences. f. The plaintifi is unfit of being a public oficer who should be shunned by other members of the public and the orphans in general. g. The plaintifi has been imposing herself and purporting to be what she is not. h. The plaintifi is a criminal person who should be arrested and charged in court. i. The plaintifi was an extortionist. The plaintifi vides a plaint dated 08.05.2014, is now seeking the following prayers against the Defendant: a. General and aggravated/exemplary damages for defamation. b. An order that the defendant make an unqualified apology and also publish a retraction of the said complained words and give them the same prominence the defamatory words were given. https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/16/eng@2014-10-02 2
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c. Costs of this suit and interests at court rates. d. Any other or further relief that this honourable court may deem fit and just to grant. 7. Despite having been served with summons, the Defendant herein never entered appearance nor filed defence and consequently interlocutory judgment was entered against it. 8. The allegations made against the plaintifi were neither factual nor truthful. As a result of the same, the plaintifi's reputation and character has definitely been destroyed. She did not need to prove the damage since such kinds of defamation are actionable per se. 9. In Nairobi High Court Civil Suit No. 1760 of 2002 - Ochieng & Others v Standard Limited, that was cited by the learned counsel for the plaintifi, the court held that defamation is a publication, without lawful justification, excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule. 10. The broadcast which has been proved herein was published, without lawful justification or excuse and it did expose the plaintifi herein to hatred, contempt or ridicule. 11. The main issue herein is, however, the assessment of the damages awardable herein. 12. Learned counsel relied on the decisions in Ochieng 7 Others v Standard Limited, supra, and Busia High Court Civil Case No. 15 of 2001, Busia Teachers Co-operative Credit & Savings Society Ltd & Another v Nation Media Group Ltd, and prayed for an award of Kshs. 2,000,000/= as general damages and Kshs. 500,000/= for aggravated damages. 13. I am however aware of the guiding principles for awarding/ assessing damages in libel cases outlined in the case of Biwott v Clay (HCCC No. 1067/1068 of 1999 i.e.: a. Damages must compensate the plaintifi for the injury to his reputation and the hurt to his feelings (i.e. pain and sufiering caused to his reputation). b. The award should vindicate the plaintifi's reputation in the eyes of the public. c. The whole conduct of both the plaintifi and the defendant must be considered from the time of publication to the time of judgment. d. The damages would be aggravated if the defendant partook in malicious and insulting conduct with such 'aggravated' damages being aimed at compensating the plaintifi for additional injury; and e. The court would also consider the manner of the publication and the extent of circulation. 14. Those are just the guiding principles. They are guidelines because a person's reputation has no actual cash value. Let me therefore consider the guiding principles outlined hereinabove. 15. The plaintifi herein is a public oficer. The defendant went ahead to publish the defamatory statements without seeking her view on the said allegations. The defendant went ahead to repeat the broadcasts. The defendant ignored the plaintifi complaints raised in a demand notice which was issued on 01.04.2014, a few days after the broadcasts. The demand notice was produced herein as PEXH. No. 3. The defendant went ahead to disregard the court summons herein. I find the defendant' conduct to border on malice and as such should be punished by way of an aggravated damages. 16. The plaintifi, however, failed to prove the extent of the broadcast coverage. The only evidence available is that the broadcast was from Nakuru, and that the plaintifi and the witnesses received the same while https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/16/eng@2014-10-02 3
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in Nyandarua County. In the absence of any other evidence to the contrary, I will assume, for purposes of this suit, that the words were broadcast in only 2 out of the 47 counties in Kenya, i.e. Nakuru and Nyandarua. 17. Though the nature of the defamatory words herein appears to be of the same nature as those in Ochieng & Others v Standard Limited, supra, the Kshs. 3.5 million general damages and 1m aggravated damages awarded therein in 2004, were for defamation that were widely circulated throughout Kenya and around the world through the East African Standard newspaper. I will therefore consider the efiect of infiation because of the 10 years time lapse since the decision was made; and also given the limited broadcast coverage that has been proved herein and award the plaintifi Kshs. 260,000/= as general damages for defamation herein. 18. I will also use the same grounds to award Kshs.75,000/= as aggravated damages herein. 19. I shall also grant prayer number (b) in the plaint regarding the appropriate apology, the same to be tendered 14 days after the service of the decree on the defendant. 20. Costs of this suit are to be paid to the plaintifi. 21. In the event, I grant judgment for Kshs. 335,000 plus costs and interest as prayed in the plaint together with an apology aforesaid. 22. Orders accordingly. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 02ND DAY OF OCTOBER, 2014 ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of; Court clerk: Jerusha Plaintifi's counsel: Kamanga Plaintifi: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/16/eng@2014-10-02 4
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