Elisha Ochieng Odhiambo v Booker Ngesa Omole [2021] eKLR

Key Facts

Issues

• Decided the appropriate cost allocation following the court's determination, adhering to the principle that costs follow the event.
• Assessed the plaintiff's entitlement to general and aggravated damages based on the malice and reputational harm, referencing Section 16A of the Defamation Act and comparable case law.
• Examined if the defendant's statements constituted fair comment or justification under public interest, referencing cases like Musikari Kombo v Royal Media Services and Gatley on Libel.
• Evaluated if the defendant's statements placed the plaintiff in personal or professional jeopardy, referencing legal standards for defamation claims.
• Determined the plaintiff's right to a permanent injunction against the defendant's further defamatory publications, considering the defendant's persistent malicious conduct.
• Determined if the defendant's statements disparaged and discredited the plaintiff's reputation, character, and exposed him to hatred, ridicule, or contempt.
• Determined whether the defendant's statements were defamatory as per legal standards, including whether they lowered the plaintiff's reputation in the estimation of right-thinking members of society.
• Assessed whether the defendant's statements were factually true or false, and whether they were made maliciously, negligently, or recklessly as per Section 107 of the Evidence Act and defamation principles.

Holdings

• The court found the defendant liable for defamation with malice, as the publications were false and intended to harm the plaintiff's reputation. The defendant's claims of truth or fair comment were rejected due to lack of evidence.
• General damages of Kshs 5,000,000 and aggravated damages of Kshs 1,000,000 were awarded to the plaintiff to compensate for reputational harm and malicious intent. The court emphasized the need for deterrence and protection of societal values.
• A permanent injunction was granted to restrain the defendant from publishing further defamatory material regarding the NG-CDF project at Masinde Primary School. The court highlighted the defendant's persistent malicious behavior and failure to correct false allegations.

Remedies

• General Damages of Kshs 5,000,000 awarded to the plaintiff.
• The costs of the suit are awarded to the plaintiff.
• Aggravated Damages of Kshs 1,000,000 awarded to the plaintiff.
• The defendant is found 100% liable for defaming the plaintiff and with malice.
• Interest is awarded on the general damages, aggravated damages, and costs from the date of judgment until full payment.
• A permanent injunction is issued restraining the defendant, his agents, and servants from publishing or circulating any defamatory articles or materials in reference to the NG-CDF project at Masinde Primary School.

Monetary Damages

Legal Principles

• The court emphasized that the burden of proof lies with the plaintiff to establish defamation on a balance of probabilities, while the defendant must prove truth, justification, or fair comment if asserting such defenses. The plaintiff must demonstrate the defamatory nature of the statements, their publication, and their reference to them, whereas the defendant must substantiate the truth of the allegations to avoid liability.
• In civil defamation cases, the standard of proof is a balance of probabilities, as opposed to the criminal standard of 'beyond reasonable doubt.' The court applied this standard to evaluate the plaintiff's claims and the defendant's defenses, noting that contradictions in dates were curable and did not invalidate the evidence.
• The court analyzed the defendant's defenses of truth and fair comment in the public interest. It held that the defendant's allegations were not justified as truth due to lack of evidence, and the statements were not fair comment because they were malicious and not proportionate to the facts. The defense of justification was rejected as the defendant could not substantiate the defamatory claims.

Precedent Name

• Joseph Njogu Kamunge v Charles Muriuki Gachari
• Phineas Nyagah v Gitobu Imanyara
• Musikari Kombo v Royal Media Services Limited
• John Ward v Standard Ltd
• New York Times v Sullivan
• S M W v Z W M
• Raphael Lukale v Elizabeth Mayabi & another
• Miguna Miguna v Standard Group Limited & 4 others
• Royal Media Services Limited & another v Jakoyo Midiwo

Cited Statute

• Evidence Act
• Defamation Act
• Constitution of Kenya
• Civil Procedure Act

Judge Name

Passage Text

• Judgment be and is hereby entered for the plaintiff against the defendant as follows: a. The defendant is found liable at 100% for defaming the plaintiff and with malice; b. General Damages awarded to the plaintiff against the defendant: Kshs 5,000,000; c. Aggravated Damages awarded to the plaintiff against the defendant: Kshs 1,000,000; d. A Permanent injunction is hereby issued restraining the defendant...
• I find no truth or justification or fair comment in the public interest on the part of the defendant. I find no justification for the words expressed by the defendant towards the plaintiff that he was a thief and or that he had connived with the head teacher of the School and misappropriated public funds in the name of constructing an administration block at Masinde Primary School.
• The words complained of by the plaintiff were published to several other people in the Wagai/Yala Division WhatsApp Group by one Godrick and the said words as posted were lifted from Booker Ngesa Omole Facebook web page where the defendant claims that 'the Communist Party of Kenya through the office of the Vice Chairperson Booker Ngesa Omole, exposes Flagrant theft and misappropriation of public resources in Gem Constituency under the watch of Elisha Ochieng Odhiambo, member of Parliament, Over Kshs. 1,000,000 has been stolen in the Masinde Primary School Administration case, the School Headmistress Madam Celestine Omolo Akoth has been intimidated not to talk to the Media, herself she is a party to the fraud. The MP has been calling the media houses to threaten them of a legal suit instead of safeguarding the public interest.'