Jillo Kadida
3 October 2008
Nairobi — The High Court on Friday dismissed a defamation suit filed by an assistant minister against Nation Media Group.
In a 91-page judgment, High Court judge Mr Justice Jacktone Boma Ojwang ruled that a story carried by the media house in relation to a swoop on prostitutes in Nairobi's Koinange Street in 2003 did not refer to assistant minister Mwangi Kiunjuri.
"I hold that the Sunday Nation article of December 14, 2003 bore no innuendo that linked the plaintiff (Mr Kiunjuri) to the facts alleged," said Mr Justice Ojwang.
Mr Kiunjuri had argued that the story linked him to a prostitution swoop.
He sued the Nation Media Group, its Editorial Director, Mr Wangethi Mwangi and Royal Media Services. Royal Media also carried the story as a follow-up to the newspaper publication.
Mr Justice Ojwang, in ruling that the Nation story did not in any way defame Mr Kiunjuri, considered evidence adduced in court by the assistant minister's close friends.
The judge said that of all the witnesses called, only one said he was able to tell that the person being referred to in the article was Mr Kiunjuri.
However, the witness, Mr Peter Mwangi Ngatia, contradicted himself when he said that in some respects the article did not sound like it was referring to the assistant minister.
According to the judge, if crucial witnesses who were close friends of Mr Kiunjuri could not tell if the article referred to him, then it would be impossible for any other person reading it to perceive it as referring to the assistant minister.
On Mr Ngatia's contention that the article referred to Mr Kiunjuri, the judge said: "I hold the story has no direct connecting link to the plaintiff (Mr Kiunjuri), unless the witness himself had some special reason for the suspicion which he was harbouring."
Pay the costs
After finding the Nation not liable, the judge ordered Mr Kiunjuri to pay costs of the suit to the media house.
He is expected to pay the costs and interest at a rate to be determined by the court from the day the case was filed in 2003.
Justice Ojwang also noted that the Nation article did not mention Mr Kiunjuri's name and, in the absence of direct reference, neither the Nation nor its editors could be said to have defamed him.
Secondly, the judge said the article was done in the public interest as it covered issues pertaining to HIV/Aids and could not be said to have been meant to make profit.
The judge said the Nation did not merely carry the story on the police swoop but published a series of educative articles on the threat of infection posed by the HIV/Aids pandemic.
The public interest in curbing the spread of the disease is a matter the courts must take judicial notice of, said Mr Justice Ojwang.
He also said that if Mr Kiunjuri had been shown to have been arrested during a police swoop on prostitutes, his fitness for public office would have merited appropriate press coverage, considering the threat posed by HIV/Aids.
However, in this case, no proof was brought before the court and therefore the assistant minister's endeavour to protect his reputation would not show an over-sensitivity on his part as an office holder, said the judge in response to a submission that Mr Kiunjuri was being over-sensitive.
The judge at the same time found Royal Media guilty of defaming Mr Kiunjuri and awarded him Sh5 million compensation.
Royal Media, the judge ruled, did not conduct proper investigations before carrying the story and naming the assistant minister as one of the politicians arrested during the swoop.
Royal Media said in court that it conducted investigations based on the Nation story and, after confirmation, named the politicians who were allegedly arrested.
Despite saying this in court, the judge said, no evidence or witness was called to support the claims of investigations.
Royal Media largely dwelt on the evidence given in court by a police officer, Chief Inspector Patrick Oduma, who said that 102 girls were arrested during the swoop while some businessmen and three politicians were released without being charged.
The witness had also said that Mr Kiunjuri was one of the three politicians.
However, the judge said such inference on evidence does not show that indeed Mr Kiunjuri was one of those arrested.
Reduced award
As a result, the judge rejected the defence of justification as pleaded by Royal Media.
The judge also reduced the award sought by Mr Kiunjuri from Sh125 million to Sh5 million, saying there was no basis to award such a hefty amount of money.
The judge noted that some of his colleagues have been awarding hefty sums of money for damages in defamation cases.
He said such awards over the last decade or so have been rightly criticised as not founded on a clearly demonstrable basis of compensation for injury suffered.
Hefty damages
Some awards by the High Court, he said, were a clear departure from precedent setting directions of Court of Appeal judgments.
He said one such example is a case involving Chief Justice Evan Gicheru and author Andrew Morton where the Court of Appeal awarded the Chief Justice Sh6 million for defamation and at the same time warned lower court judges to refrain from awarding hefty damages in defamation cases.
On Saturday Mr Justice Ojwang said the courts ought to consider whether amounts awarded in damages are fairly compensatory.
Secondly, he said, restraint in the award of damages is desirable.
And, thirdly, the judge said that the awards should appear realistic in all the circumstances.
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