1. Through the Memorandum of Appeal dated 1.11.23 The appellant challenges The Judgement delivered on 5th October,2023 in Milimani civil case number E5504 of 2022 on the grounds that:
1) The Learned Magistrate erred both in law and in fact by delivering a grossly incompetent Judgment.
2) The Learned Magistrate erred in law and in fact by assuming jurisdiction and purporting to audit the pleadings/proceedings in MILIMANI ELRCPET/E167/2022-Aggrey Wafula versus Kenya National Commission for UNESCO
a. & Others, which proceedings /pleadings were absolutely privileged and already concluded by the Employment and Labour Relations Court.
3) The Learned Magistrate erred in law and in fact by finding that the pleadings/proceedings in MILIMANI ELRC PET/E167/2022-Aggrey Wafula versus Kenya National Commission for UNESCO & Others, were defamatory.
4) The Learned Magistrate erred both in law and in fact by failing to take into consideration the elements/ingredients of defamation and whether they were proven in the subject matter.
2. It is his case that the trial court erred in law by assuming outside its jurisdiction over pleadings and proceedings filed in ELRC Petition No. E167 of 2022, which fell exclusively under the jurisdiction of the Employment and Labour Relations Court.
3. The appellant seeks orders;
1) That The appeal herein be allowed.
2) The Judgment delivered on 5th October,2023 by the Honourable Hellen Maritim in the Magistrates Court Civil Suit no. E5504 OF 2022 be wholly set aside with costs to the Appellant.
3) Costs of this appeal be provided for.
4. Section 12 of the Employment and Labour Relations Court Act provides that;
“12. Jurisdiction of the Court
i. The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including — ….
ii. An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer's organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.”
5. Article 162(2)(a) of the Constitution of Kenya 2010 state as follows;
“…2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) employment and labour relations…”
6. The appellant further submits that the trial court erred by purporting to audit and evaluate the pleadings and/or proceedings in ELRC Petition No. E167 of 2022, as the same being court pleadings and proceedings are covered and protected under absolute privilege.
7. Reliance is placed in the case of J.P. Machira t/a Machira & Company Advocates v Mwangi & another (Civil Appeal 175 of 2019) [2023] KECA 228 (KLR) (3 March 2023) (Judgment),where the Court of Appeal cited as follows;
“As Lord Devlin stated in Lincoln v Daniels [1962] 1 QB 237 at 257, the privilege attaches to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, with such protection extending to the contents of documents submitted as evidence. Absolute privilege extends to everything that is done from the inception of the proceedings onwards and includes all pleadings and other documents brought into existence for the purpose of the proceedings”
8. Further in J.P. Machira t/a Machira & Company Advocates v Mwangi & another (Civil Appeal 175 of 2019) [2023] KECA 228 (KLR) (3 March 2023) (Judgment), the Court of Appeal stated as follows;
“Statements made in the course of, or in connection with, judicial or quasi-judicial proceedings are protected under section 6 of the Defamation Act.”
In Hulsbury’s Law of England 4th Edition Vol. 28 at Paragraph 109 the rationale for the defence of qualified privilege is explained as follows.
“On grounds of Public policy, the law affords Protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person even when that statement is in-fact untrue and defamatory. Such occasions are called occasions of qualified privilege. The principal categories of qualified privilege are;
Limited communication between persons having a common and corresponding duty or interest to make and receive the communication.
Communication to the public at large or to a Section of the Public made pursuant to a legal, social or moral duty to do so in reply to a public attack. Fair and accurate reports published generally or proceedings of specified persons or bodies.”
9. It is his submission that the trial court erred by disregarding the defence of judicial privilege.
10. On the third issue of whether the trial court erred in finding that the pleadings filed in
ELRC Petition No. E167 of 2022 were defamatory the appellant submits that in order to establish defamation, the following ingredients must be shown; that the statements were defamatory, they referred to the plaintiff, were published to a third party, and were false.
11. He submits that Respondents failed to prove publication to third parties as the Appellant did not publish or circulate the pleadings outside court processes.
12. The court in Wycliffe A. Swanya v Toyota East Africa Ltd & Another [2009] eKLR held thus;
“… Words uttered by a party against another amount to slander if they are published and intended to disparage that person in his office, profession, calling, trade or business held or carried on by him, (see section 3 of the Defamation Act). The words allegedly uttered by the respondents and which gave rise to the case in the superior court do not appear to have been communicated to third parties or shown to have been intended to disparage or directed at disparaging the appellant in his office, profession, calling, trade or business held or carried on by him. The pleadings or even the proceedings do not disclose this important aspect of the case nor do they disclose any third party who would have heard the disparaging remarks in order to establish the ingredient of publication and to hold the appellant to ridicule or contempt. Neither is the defamatory nature of the alleged remarks clearly brought out. Given all these circumstances, we are of the view that no defamation case was made out by the respondents against the appellant…”
13. He submits that he did not publish or circulate the pleadings as they were part of a court record.
14. He further submits that the Respondents failed to establish malice on the part of the Appellant as the Appellant lawfully and procedurally exercised his constitutional right to file a constitutional petition in a court of competent jurisdiction, alleging breaches of the Constitution.
15. The trial court erred in finding the court proceedings and/or pleadings in the filed Petition were defamatory.
The Respondents Case
16. Reliance is placed in the Court of Appeal in SELLE VS
ASSOCIATED MOTOR BOAT COMPANY LIMITED (19680 E.A 123 which was cited by Honourable Lady Justice Linnet Ndolo recently, in the case of Herbert Wafula Waswa Vs Kenya Wildlife Services (2020)e KLR as follows;
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
17. It submits that at the centre of the dispute in this matter is the proceedings in Milimani Elrc/Pet/E167/2022 Between Aggrey Wafula Vs Kenya National Commission For Unesco & Others in which the Respondent stated that the Appellant had filed a petition with highly malicious information which was not only defamatory on the commission but also to her and to which it lowered her character in the eyes of the average thinking man in the society.
18. It submits that the court therefore had to evaluate the said publication to arrive at a just conclusion as to the nature of those publications and whether they qualified for the privilege defense.
19. According to the applicant, the fact that the said matter had been concluded by the Employment Court did not have authority to audit the same.
20. It submits that the court could not have made its decision without having a look at the pleadings in the matter in Milimani Elrc/Pet/E167/2022 Between Aggrey Wafula Vs Kenya National Commission For Unesco & Others.
21. It submits that The Trial Court’s reference and alleged audit of the said pleadings was only to the extent that the same referred to the defamatory statements in issue, there was no way the court would have determined the issue as to whether the alleged statements were defamatory in nature without an actual audit of the same bearing in mind that the defence of truth/justification is available in defamation matters.
22. It is its case that The Appellant also seems to suggest that the said pleadings were immune from the authority of the Trial Court by the mere fact that the Employment Court had rendered itself on the matter.
23. It submits that the Trial Court having a look at the alleged defamatory statements as contained in the pleadings of the Employment Court which is a court above the Trial Court in matters of jurisdiction does not in any way infer that the Trial Court was exercising a supervisory jurisdiction of some sought contrary to the law.
24. It submits that the court was rightly seized of the matter and did not act ultra vires.
25. It is further submitted that Under Section 7(1) of the Magistrate Courts’ Act, 2015 the court has jurisdiction to entertain a defamation claim provided that the damages sought or awarded would not exceed 20 million as was the case in the matter giving rise to this appeal.
26. It submits that the defence of privilege as alleged by the appellant could not apply in the circumstances.
27. The contents of an affidavit though they form part of court proceedings which are privileged, they can form an action in a defamation suit and as such are not privileged according to the Respondent.
28. Reliance is placed on the case of David Mwangi Muiruri Vs Ali Bakari Mohammed (2018) eKLR in which the appellate court affirmed the 2nd appeal (Court of Appeal) in holding that the 1stappellate (High Court) exercised its discretion judiciously in differing with the Trial Magistrate findings that the contents of an affidavit could not form a cause of action in defamation suit. The 1st appellate court held that though the affidavits form part of court proceedings, the contents of an affidavit are not priviliged and can be actionable in defamation and thus striking out the plaintiff’s suit ostensibly for failure to disclose a reasonable cause of action was erroneous. The Court of Appeal therefore dismissed the appeal with costs for want of merit.
29. In relation to ground 3 it is submitted that the contents of the affidavit deponed by the Appellant in Nairobi Elrc Pet/E167/2022 Aggrey Wafula Vs Kenya National
Commission For Unesco & Others Were defamatory and the Trial Court rightly held so.
30. The thrust of the petition was that the Respondent had acted contrary to Article 10 & 232 of the Constitution of Kenya, 2010 by practicing nepotism, tribalism and discrimination during the recruitment process by leaning towards certain people who were from the same tribe with her and who were related to her.
31. The Respondent submits that when given a chance to refute these allegations he did not call any evidence to prove that they were not defamatory and the Trial Court went ahead and held the same to be baseless.
32. The contents of the said affidavit were indeed defamatory to the Respondent.
33. When the matter came up for hearing the Respondent stated that she did not file an application seeking to have the alleged defamatory statements expunged but instead filed a response vindicating herself and on the strength of which the court ruled in her favour.
34. The appellant did not bother to file any statement/s or call any witness to substantiate his defense of privilege which was alluded to in his submissions.
35. It argues that Section 107 of the Evidence Act, Cap 80 the burden of proof lay squarely upon the Appellant to prove that the allegations were in fact not defamatory as per their contention. It states that:-
‘Whoever desires any court to give Judgement as to any legal right or ability dependent on the existence of facts which he asserts must prove that those facts exist”.
36. The appellant did not have any sort of evidence to support his allegations leveled against the respondents in the said affidavit.
37. The appellant failed to attend court to give evidence.
38. In the Supreme court of the United Kingdom in the case of Spiller And Another (Appellants) Vs Joseph &Amp;
Others (Respondents) 2010 Uksc 53 where Lord Phillip expound on the outer limits
of well established and non-controversial defence in defamation, the late Hon. Lady Justice Thuranira Jaden in the case of Patrick Nyoike Vs Linus GITAHI (2020) eKLR awarded the plaintiff therein a global sum of Kshs. 6, 000, 000 as compensation among other prayers sought, she also held as follows:
“…Lord Phillips adopted with approval what the Court of Final Appeal of Hong Kong characterized as the five “well established” “non-controversial matters” in relation to the defence of fair comment. First, the comment must be on a matter of public interest. Second, the comment must be recognizable as comment, distinct from an imputation of fact. Third, the comment must be based on facts, which are true or protected by privilege. Fourth the comments must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a 6 | Page position to judge for himself how far the comment was well founded. Fifth, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views…”
39. The Respondent on the other hand tendered evidence and the Appellant’s petition was dismissed on 2rd May, 2023.
40. The statements alleged to be defamatory touched on the integrity and character of the Respondent to the extent of the office she held.
41. In Challenging Ground 4 of The Appeal It submits that all the ingredients of defamation were all proved to the required standard.
42. It submits that the words complained of were published by the defendant in reference to them and that the words were actually defamatory/injured their reputation in the eyes of the right thinking mind of the average person.
43. In this instant matter the Appellant’s action for defamation was premised on the contents of the affidavit and pleadings in Milimani Elrc Pet/E167 Of 2022 Aggrey Wafula Vs Kenya National Commission For Unesco & Secretary General Unesco.
44. The defamatory words were indeed authored by the Appellant in paragraphs 2,3,6, 7 & 8 of the Certificate of Urgency Application dated 18/09/2022 and also replicated in the Appellant’s affidavit sworn on even date.
45. The words as published by the Appellant in the other matter were defamatory, and not a reflection of the Respondent’s position and that they contained of statements which were not factual and were actuated by bad faith without any justification.
46. It submits that the said words in their natural and ordinary meaning meant and were understood to mean that the Respondent was unworthy and corrupt and that she was unfit to hold public office and that her morals, character and integrity is questionable.
47. There were other available avenues to seek redress which the Appellant ought to have exhausted before resorting to the petition in which he defamed the Respondent.
Analysis and determination
48. Following are the issues for determination:
1) Whether the appeal has merit.
2) Who shall bear the costs.
Whether the appeal has merit;
49. In the case of Herbert Wafula Waswa Vs Kenya Wildlife Services (2020)E Klr The court held as follows;
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
50. It is the appellants case that the trial court erred in law by assuming outside its jurisdiction over pleadings and proceedings filed in ELRC Petition No. E167 of 2022, which fell exclusively under the jurisdiction of the Employment and Labour Relations Court.
51. The appellant argued that the trial court erred by purporting to audit and evaluate the pleadings and/or proceedings in ELRC Petition No. E167 of 2022, as the same being court pleadings and proceedings are covered and protected under absolute privilege.
52. It is this court’s finding that affidavits form part of court proceedings as a result of which the contents of an affidavit are not privileged and can be actionable in defamation cases.
53. In arriving at this conclusion, this court is guided by the case Of David Mwangi Muiruri Vs Ali Bakari Mohammed (2018) eKLR in which the appellate court affirmed the 2nd appeal (Court of Appeal) in holding that the 1st appellate (High Court) exercised its discretion judiciously in differing with the Trial Magistrate findings that the contents of an affidavit could not form a cause of action in defamation suit. The 1st appellate court held that though the affidavits form part of court proceedings, the contents of an affidavit are not privileged and can be actionable in defamation and thus striking out the plaintiff’s suit ostensibly for failure to disclose a reasonable cause of action was erroneous. The Court of Appeal therefore dismissed the appeal with costs for want of merit.
54. That said,it is this court’s finding that the fact that the contents of an affidavit are not privileged is not enough.
55. In order to succeed,the Respondent ought to have done more.It ought to have proved that the appellant maliciously circulated or published the said Affidavit to third parties.
56. The Respondent did not demonstrate that the Affidavit was published with the intention to disparage or were directed at disparaging the Respondent.
57. In so finding ,I am guided by the case of Wycliffe A. Swanya v Toyota East Africa Ltd & Another [2009] eKLR where it was held thus;
“… Words uttered by a party against another amount to slander if they are published and intended to disparage that person in his office, profession, calling, trade or business held or carried on by him, (see section 3 of the Defamation Act). The words allegedly uttered by the respondents and which gave rise to the case in the superior court do not appear to have been communicated to third parties or shown to have been intended to disparage or directed at disparaging the appellant in his office, profession, calling, trade or business held or carried on by him. The pleadings or even the proceedings do not disclose this important aspect of the case nor do they disclose any third party who would have heard the disparaging remarks in order to establish the ingredient of publication and to hold the appellant to ridicule or contempt. Neither is the defamatory nature of the alleged remarks clearly brought out. Given all these circumstances, we are of the view that no defamation case was made out by the respondents against the appellant…”
58. The respondent did not prove that the appellant published or circulated the pleadings. They were simply part of a court record. There was nothing wrong with the trial court referring to them.
59. In answering the question whether defamation was proven,it is this court’s finding that the court has already made a finding that the words complained of were merely in an affidavit and that they were not published by the appellant.
60. The contents of the affidavit and pleadings in Milimani Elrc Pet/E167 Of 2022 Aggrey Wafula Vs Kenya National Commission For Unesco & Secretary General Unesco remain as such given that the Respondent has failed to establish that the Appellant maliciously circulated or published the contents to 3rd parties.
61. The fact that the offending words were authored by the Appellant in paragraphs 2,3,6, 7 & 8 of the Certificate of Urgency Application dated 18/09/2022 and also replicated in the Appellant’s affidavit sworn of even date on their own without proof of malice in the circulation is not enough.
Determination;
62. The appeal has merit.
Costs;
63. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
64. The applicants are entitled to costs.
Order;
1) The appeal is allowed.
2) The Judgment delivered on 5th October,2023 by the Honourable Hellen Maritim in the Magistrates Court Civil Suit no. E5504 OF 2022 is set aside with costs to the Appellant.
3) Costs of this appeal to the appellant.
1) The Learned Magistrate erred both in law and in fact by delivering a grossly incompetent Judgment.
2) The Learned Magistrate erred in law and in fact by assuming jurisdiction and purporting to audit the pleadings/proceedings in MILIMANI ELRCPET/E167/2022-Aggrey Wafula versus Kenya National Commission for UNESCO
a. & Others, which proceedings /pleadings were absolutely privileged and already concluded by the Employment and Labour Relations Court.
3) The Learned Magistrate erred in law and in fact by finding that the pleadings/proceedings in MILIMANI ELRC PET/E167/2022-Aggrey Wafula versus Kenya National Commission for UNESCO & Others, were defamatory.
4) The Learned Magistrate erred both in law and in fact by failing to take into consideration the elements/ingredients of defamation and whether they were proven in the subject matter.
2. It is his case that the trial court erred in law by assuming outside its jurisdiction over pleadings and proceedings filed in ELRC Petition No. E167 of 2022, which fell exclusively under the jurisdiction of the Employment and Labour Relations Court.
3. The appellant seeks orders;
1) That The appeal herein be allowed.
2) The Judgment delivered on 5th October,2023 by the Honourable Hellen Maritim in the Magistrates Court Civil Suit no. E5504 OF 2022 be wholly set aside with costs to the Appellant.
3) Costs of this appeal be provided for.
4. Section 12 of the Employment and Labour Relations Court Act provides that;
“12. Jurisdiction of the Court
i. The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including — ….
ii. An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer's organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.”
5. Article 162(2)(a) of the Constitution of Kenya 2010 state as follows;
“…2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) employment and labour relations…”
6. The appellant further submits that the trial court erred by purporting to audit and evaluate the pleadings and/or proceedings in ELRC Petition No. E167 of 2022, as the same being court pleadings and proceedings are covered and protected under absolute privilege.
7. Reliance is placed in the case of J.P. Machira t/a Machira & Company Advocates v Mwangi & another (Civil Appeal 175 of 2019) [2023] KECA 228 (KLR) (3 March 2023) (Judgment),where the Court of Appeal cited as follows;
“As Lord Devlin stated in Lincoln v Daniels [1962] 1 QB 237 at 257, the privilege attaches to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, with such protection extending to the contents of documents submitted as evidence. Absolute privilege extends to everything that is done from the inception of the proceedings onwards and includes all pleadings and other documents brought into existence for the purpose of the proceedings”
8. Further in J.P. Machira t/a Machira & Company Advocates v Mwangi & another (Civil Appeal 175 of 2019) [2023] KECA 228 (KLR) (3 March 2023) (Judgment), the Court of Appeal stated as follows;
“Statements made in the course of, or in connection with, judicial or quasi-judicial proceedings are protected under section 6 of the Defamation Act.”
In Hulsbury’s Law of England 4th Edition Vol. 28 at Paragraph 109 the rationale for the defence of qualified privilege is explained as follows.
“On grounds of Public policy, the law affords Protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person even when that statement is in-fact untrue and defamatory. Such occasions are called occasions of qualified privilege. The principal categories of qualified privilege are;
Limited communication between persons having a common and corresponding duty or interest to make and receive the communication.
Communication to the public at large or to a Section of the Public made pursuant to a legal, social or moral duty to do so in reply to a public attack. Fair and accurate reports published generally or proceedings of specified persons or bodies.”
9. It is his submission that the trial court erred by disregarding the defence of judicial privilege.
10. On the third issue of whether the trial court erred in finding that the pleadings filed in
ELRC Petition No. E167 of 2022 were defamatory the appellant submits that in order to establish defamation, the following ingredients must be shown; that the statements were defamatory, they referred to the plaintiff, were published to a third party, and were false.
11. He submits that Respondents failed to prove publication to third parties as the Appellant did not publish or circulate the pleadings outside court processes.
12. The court in Wycliffe A. Swanya v Toyota East Africa Ltd & Another [2009] eKLR held thus;
“… Words uttered by a party against another amount to slander if they are published and intended to disparage that person in his office, profession, calling, trade or business held or carried on by him, (see section 3 of the Defamation Act). The words allegedly uttered by the respondents and which gave rise to the case in the superior court do not appear to have been communicated to third parties or shown to have been intended to disparage or directed at disparaging the appellant in his office, profession, calling, trade or business held or carried on by him. The pleadings or even the proceedings do not disclose this important aspect of the case nor do they disclose any third party who would have heard the disparaging remarks in order to establish the ingredient of publication and to hold the appellant to ridicule or contempt. Neither is the defamatory nature of the alleged remarks clearly brought out. Given all these circumstances, we are of the view that no defamation case was made out by the respondents against the appellant…”
13. He submits that he did not publish or circulate the pleadings as they were part of a court record.
14. He further submits that the Respondents failed to establish malice on the part of the Appellant as the Appellant lawfully and procedurally exercised his constitutional right to file a constitutional petition in a court of competent jurisdiction, alleging breaches of the Constitution.
15. The trial court erred in finding the court proceedings and/or pleadings in the filed Petition were defamatory.
The Respondents Case
16. Reliance is placed in the Court of Appeal in SELLE VS
ASSOCIATED MOTOR BOAT COMPANY LIMITED (19680 E.A 123 which was cited by Honourable Lady Justice Linnet Ndolo recently, in the case of Herbert Wafula Waswa Vs Kenya Wildlife Services (2020)e KLR as follows;
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
17. It submits that at the centre of the dispute in this matter is the proceedings in Milimani Elrc/Pet/E167/2022 Between Aggrey Wafula Vs Kenya National Commission For Unesco & Others in which the Respondent stated that the Appellant had filed a petition with highly malicious information which was not only defamatory on the commission but also to her and to which it lowered her character in the eyes of the average thinking man in the society.
18. It submits that the court therefore had to evaluate the said publication to arrive at a just conclusion as to the nature of those publications and whether they qualified for the privilege defense.
19. According to the applicant, the fact that the said matter had been concluded by the Employment Court did not have authority to audit the same.
20. It submits that the court could not have made its decision without having a look at the pleadings in the matter in Milimani Elrc/Pet/E167/2022 Between Aggrey Wafula Vs Kenya National Commission For Unesco & Others.
21. It submits that The Trial Court’s reference and alleged audit of the said pleadings was only to the extent that the same referred to the defamatory statements in issue, there was no way the court would have determined the issue as to whether the alleged statements were defamatory in nature without an actual audit of the same bearing in mind that the defence of truth/justification is available in defamation matters.
22. It is its case that The Appellant also seems to suggest that the said pleadings were immune from the authority of the Trial Court by the mere fact that the Employment Court had rendered itself on the matter.
23. It submits that the Trial Court having a look at the alleged defamatory statements as contained in the pleadings of the Employment Court which is a court above the Trial Court in matters of jurisdiction does not in any way infer that the Trial Court was exercising a supervisory jurisdiction of some sought contrary to the law.
24. It submits that the court was rightly seized of the matter and did not act ultra vires.
25. It is further submitted that Under Section 7(1) of the Magistrate Courts’ Act, 2015 the court has jurisdiction to entertain a defamation claim provided that the damages sought or awarded would not exceed 20 million as was the case in the matter giving rise to this appeal.
26. It submits that the defence of privilege as alleged by the appellant could not apply in the circumstances.
27. The contents of an affidavit though they form part of court proceedings which are privileged, they can form an action in a defamation suit and as such are not privileged according to the Respondent.
28. Reliance is placed on the case of David Mwangi Muiruri Vs Ali Bakari Mohammed (2018) eKLR in which the appellate court affirmed the 2nd appeal (Court of Appeal) in holding that the 1stappellate (High Court) exercised its discretion judiciously in differing with the Trial Magistrate findings that the contents of an affidavit could not form a cause of action in defamation suit. The 1st appellate court held that though the affidavits form part of court proceedings, the contents of an affidavit are not priviliged and can be actionable in defamation and thus striking out the plaintiff’s suit ostensibly for failure to disclose a reasonable cause of action was erroneous. The Court of Appeal therefore dismissed the appeal with costs for want of merit.
29. In relation to ground 3 it is submitted that the contents of the affidavit deponed by the Appellant in Nairobi Elrc Pet/E167/2022 Aggrey Wafula Vs Kenya National
Commission For Unesco & Others Were defamatory and the Trial Court rightly held so.
30. The thrust of the petition was that the Respondent had acted contrary to Article 10 & 232 of the Constitution of Kenya, 2010 by practicing nepotism, tribalism and discrimination during the recruitment process by leaning towards certain people who were from the same tribe with her and who were related to her.
31. The Respondent submits that when given a chance to refute these allegations he did not call any evidence to prove that they were not defamatory and the Trial Court went ahead and held the same to be baseless.
32. The contents of the said affidavit were indeed defamatory to the Respondent.
33. When the matter came up for hearing the Respondent stated that she did not file an application seeking to have the alleged defamatory statements expunged but instead filed a response vindicating herself and on the strength of which the court ruled in her favour.
34. The appellant did not bother to file any statement/s or call any witness to substantiate his defense of privilege which was alluded to in his submissions.
35. It argues that Section 107 of the Evidence Act, Cap 80 the burden of proof lay squarely upon the Appellant to prove that the allegations were in fact not defamatory as per their contention. It states that:-
‘Whoever desires any court to give Judgement as to any legal right or ability dependent on the existence of facts which he asserts must prove that those facts exist”.
36. The appellant did not have any sort of evidence to support his allegations leveled against the respondents in the said affidavit.
37. The appellant failed to attend court to give evidence.
38. In the Supreme court of the United Kingdom in the case of Spiller And Another (Appellants) Vs Joseph &Amp;
Others (Respondents) 2010 Uksc 53 where Lord Phillip expound on the outer limits
of well established and non-controversial defence in defamation, the late Hon. Lady Justice Thuranira Jaden in the case of Patrick Nyoike Vs Linus GITAHI (2020) eKLR awarded the plaintiff therein a global sum of Kshs. 6, 000, 000 as compensation among other prayers sought, she also held as follows:
“…Lord Phillips adopted with approval what the Court of Final Appeal of Hong Kong characterized as the five “well established” “non-controversial matters” in relation to the defence of fair comment. First, the comment must be on a matter of public interest. Second, the comment must be recognizable as comment, distinct from an imputation of fact. Third, the comment must be based on facts, which are true or protected by privilege. Fourth the comments must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a 6 | Page position to judge for himself how far the comment was well founded. Fifth, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views…”
39. The Respondent on the other hand tendered evidence and the Appellant’s petition was dismissed on 2rd May, 2023.
40. The statements alleged to be defamatory touched on the integrity and character of the Respondent to the extent of the office she held.
41. In Challenging Ground 4 of The Appeal It submits that all the ingredients of defamation were all proved to the required standard.
42. It submits that the words complained of were published by the defendant in reference to them and that the words were actually defamatory/injured their reputation in the eyes of the right thinking mind of the average person.
43. In this instant matter the Appellant’s action for defamation was premised on the contents of the affidavit and pleadings in Milimani Elrc Pet/E167 Of 2022 Aggrey Wafula Vs Kenya National Commission For Unesco & Secretary General Unesco.
44. The defamatory words were indeed authored by the Appellant in paragraphs 2,3,6, 7 & 8 of the Certificate of Urgency Application dated 18/09/2022 and also replicated in the Appellant’s affidavit sworn on even date.
45. The words as published by the Appellant in the other matter were defamatory, and not a reflection of the Respondent’s position and that they contained of statements which were not factual and were actuated by bad faith without any justification.
46. It submits that the said words in their natural and ordinary meaning meant and were understood to mean that the Respondent was unworthy and corrupt and that she was unfit to hold public office and that her morals, character and integrity is questionable.
47. There were other available avenues to seek redress which the Appellant ought to have exhausted before resorting to the petition in which he defamed the Respondent.
Analysis and determination
48. Following are the issues for determination:
1) Whether the appeal has merit.
2) Who shall bear the costs.
Whether the appeal has merit;
49. In the case of Herbert Wafula Waswa Vs Kenya Wildlife Services (2020)E Klr The court held as follows;
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
50. It is the appellants case that the trial court erred in law by assuming outside its jurisdiction over pleadings and proceedings filed in ELRC Petition No. E167 of 2022, which fell exclusively under the jurisdiction of the Employment and Labour Relations Court.
51. The appellant argued that the trial court erred by purporting to audit and evaluate the pleadings and/or proceedings in ELRC Petition No. E167 of 2022, as the same being court pleadings and proceedings are covered and protected under absolute privilege.
52. It is this court’s finding that affidavits form part of court proceedings as a result of which the contents of an affidavit are not privileged and can be actionable in defamation cases.
53. In arriving at this conclusion, this court is guided by the case Of David Mwangi Muiruri Vs Ali Bakari Mohammed (2018) eKLR in which the appellate court affirmed the 2nd appeal (Court of Appeal) in holding that the 1st appellate (High Court) exercised its discretion judiciously in differing with the Trial Magistrate findings that the contents of an affidavit could not form a cause of action in defamation suit. The 1st appellate court held that though the affidavits form part of court proceedings, the contents of an affidavit are not privileged and can be actionable in defamation and thus striking out the plaintiff’s suit ostensibly for failure to disclose a reasonable cause of action was erroneous. The Court of Appeal therefore dismissed the appeal with costs for want of merit.
54. That said,it is this court’s finding that the fact that the contents of an affidavit are not privileged is not enough.
55. In order to succeed,the Respondent ought to have done more.It ought to have proved that the appellant maliciously circulated or published the said Affidavit to third parties.
56. The Respondent did not demonstrate that the Affidavit was published with the intention to disparage or were directed at disparaging the Respondent.
57. In so finding ,I am guided by the case of Wycliffe A. Swanya v Toyota East Africa Ltd & Another [2009] eKLR where it was held thus;
“… Words uttered by a party against another amount to slander if they are published and intended to disparage that person in his office, profession, calling, trade or business held or carried on by him, (see section 3 of the Defamation Act). The words allegedly uttered by the respondents and which gave rise to the case in the superior court do not appear to have been communicated to third parties or shown to have been intended to disparage or directed at disparaging the appellant in his office, profession, calling, trade or business held or carried on by him. The pleadings or even the proceedings do not disclose this important aspect of the case nor do they disclose any third party who would have heard the disparaging remarks in order to establish the ingredient of publication and to hold the appellant to ridicule or contempt. Neither is the defamatory nature of the alleged remarks clearly brought out. Given all these circumstances, we are of the view that no defamation case was made out by the respondents against the appellant…”
58. The respondent did not prove that the appellant published or circulated the pleadings. They were simply part of a court record. There was nothing wrong with the trial court referring to them.
59. In answering the question whether defamation was proven,it is this court’s finding that the court has already made a finding that the words complained of were merely in an affidavit and that they were not published by the appellant.
60. The contents of the affidavit and pleadings in Milimani Elrc Pet/E167 Of 2022 Aggrey Wafula Vs Kenya National Commission For Unesco & Secretary General Unesco remain as such given that the Respondent has failed to establish that the Appellant maliciously circulated or published the contents to 3rd parties.
61. The fact that the offending words were authored by the Appellant in paragraphs 2,3,6, 7 & 8 of the Certificate of Urgency Application dated 18/09/2022 and also replicated in the Appellant’s affidavit sworn of even date on their own without proof of malice in the circulation is not enough.
Determination;
62. The appeal has merit.
Costs;
63. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
64. The applicants are entitled to costs.
Order;
1) The appeal is allowed.
2) The Judgment delivered on 5th October,2023 by the Honourable Hellen Maritim in the Magistrates Court Civil Suit no. E5504 OF 2022 is set aside with costs to the Appellant.
3) Costs of this appeal to the appellant.