EMMANUEL OMENDA v SAFARICOM LTD [2012] eKLR

Key Facts

Issues

• 4. Whether the plaintiff was injured as a result of the said publication.
• 8. Who should bear the costs of the suit.
• 1. Whether defendant's employees published slanderous utterances.
• 7. What damages if any the plaintiff is entitled to.
• 5. Whether any damage has been occasioned to the plaintiff as a result thereof.
• 6. Whether the pleadings satisfy the legal requirements for slander.
• 3. Whether the said publication was malicious.
• 2. Whether the said publication referred to the plaintiff.

Holdings

• The court ruled that the plaintiff suffered injury due to wrongful arrest and detention, noting the adverse inference drawn from the defense's failure to call police evidence and the staff's dismissive attitude.
• The court concluded that the publication was malicious, as the defendant's staff recklessly ignored facts, failed to verify the plaintiff's claims, and acted without procedural due diligence.
• General damages of Kshs 500,000 were awarded, citing the slander's imputation of a criminal offense punishable by over three years' imprisonment, though the court emphasized the limited scope of the publication.
• Claims for malicious arrest, false imprisonment, and violation of rights were dismissed as they were not specifically pleaded in the plaint and appeared as afterthoughts.
• The court determined that the publication directly referred to the plaintiff, as the suspicious activities and accusations were clearly directed at him and no other individual.
• The defendant was ordered to bear the costs of the suit, reflecting the court's finding in favor of the plaintiff on actionable slander and malice.
• Aggravated damages of Kshs 100,000 were awarded due to the defendant's nonchalant attitude, failure to follow up, and lack of remorse during the trial.
• The court found that the defendant's staff published slanderous utterances by referring to the plaintiff as a credit card thief, based on the evidence that such statements were made to a limited audience, including witnesses and police.

Remedies

• The plaintiff received Kshs. 100,000 in aggravated damages due to the defendant's nonchalant attitude and failure to follow up.
• The court awarded the plaintiff Kshs. 500,000 in general damages for defamation.
• Interest at court rates was awarded from the judgment date until full payment of the damages.
• The court ordered the defendant to bear the costs of the suit.

Monetary Damages

Legal Principles

• The court emphasized that aggravated damages are awarded for conduct beyond the defamatory words themselves, such as the defendant's nonchalant attitude and failure to follow up. It also applied the principle of restitution in integrum, awarding damages to compensate for the plaintiff's injury to reputation.
• Under section 3 of the Defamation Act, slander is actionable per se if it disparages a person in their profession or business. The court held that the plaintiff's arrest and labeling as a 'credit card thief' fell under this category as it implied criminal conduct punishable by imprisonment.
• The court addressed the defendant's argument that the plaintiff failed to plead the names of those who heard the defamatory statements. It ruled that while procedural rules require witness lists, the failure to name recipients was not fatal to the case as the evidence showed publication occurred.
• The court held that exemplary damages are only awarded for oppressive or unconstitutional actions by public servants, which were not applicable here. However, it found the defendant's actions warranted aggravated damages due to their reckless disregard for verification.

Precedent Name

• Rookes vs. Banard & Others
• Mikidadi -vs- Khaigan and Another
• Calystus Makhoha vs. Hussein Osore Munyifwa
• Freer vs. Zeb
• Kenya Tea Development Agency Ltd vs. Benson Ondimu Masese T/A B O Masese & Co. Advocates
• Bernard Kyeli Mutula vs. Anthony Kitonga Kamundi & Another
• J P Machira vs. Wangethi Mwangi and Nation Newspapers
• Tournier vs. National Provincial & Union Bank of England Ltd
• Francis Xavier Ole Kaparo -vs- The Standard & 3 Others
• Francis Xavier Ole Kaparo vs. The Standard & 3 Others
• Awiti vs. Attorney General
• Obongo & Another vs. Municipal Council of Kisumu
• John Joseph Kamoth & 4 Others vs. Nation Media Group & Others
• Kudwoli vs. Eureka Educational

Cited Statute

• Penal Code, section 316
• Defamation Act Cap 36 of the Laws of Kenya

Judge Name

Passage Text

• It is more likely than not that the plaintiff was annoyed by being referred to as a Credit Card thief. Accordingly I find the defendant was referred to as Credit Card thief by the defendant's staff hence this issue is in the affirmative.
• Judgement is hereby entered for the plaintiff in the sum of Kshs. 500,000/- general damages and Kshs. 100,000/- aggravated damages with interest at court rates from the date of this judgement till payment in full and costs.
• I am satisfied that the attitude of the defendant's staff can properly be classified as being malicious on the strength of the decision in J P Machira vs. Wangethi Mwangi and Nation Newspapers (supra) and so find.