A. THE PLEADINGS
1. The Plaintiff herein, by an amended plaint dated 5th June, 2006, brought this suit against the Defendants jointly and severally seeking damages for defamation arising from the publication of an article in the online edition of the Standard Newspaper.
2. The Plaintiff pleaded that he is an adult businessman of local and international repute residing and working for gain in Nairobi within the Republic of Kenya. The Plaintiff described the 1st Defendant as a limited liability company and publisher of The Standard and Sunday Standard newspapers with national and international circulation including online editions, while the 2nd Defendant was pleaded to be the Managing Director and Chief Executive Officer of the 1st Defendant responsible for the managerial and administrative affairs of the company. The 3rd Defendant was described as the Managing Editor of the 1st Defendant responsible for the collection, collation, editing and publication of material on behalf of the 1st Defendant.
3. The Plaintiff averred that on 21st January, 2005, the Defendants falsely and maliciously published in the online edition of the Standard Newspaper words concerning him under the heading “Cocaine: Mwau bid to gag media” and further described him as “Businessman John Harun Mwau – a shareholder in a container depot through which the Ksh.6 billion cocaine haul was cleared – yesterday spent more than three hours…”.
4. The Plaintiff pleaded that the publication referred to and concerned him and that the same was defamatory in its natural and ordinary meaning.
5. The Plaintiff particularized the defamatory meanings allegedly conveyed by the impugned publication as being that he was linked to a Ksh.6 billion cocaine haul; that he was involved in crime and corruption; that he was a shareholder in a depot through which cocaine was smuggled; that he was a criminal, drug peddler and drug-haul suspect; that he was guilty of offences under the Narcotic Drugs and Psychotropic Substances Act, 1994; that he was involved in dubious drug deals; and that he was untrustworthy and lacked integrity.
6. The Plaintiff further pleaded that the publication was false and actuated by malice, ill will and spite and that the Defendants intended thereby to injure his reputation and character in the estimation of right-thinking members of the public.
7. In support of the allegation of malice, the Plaintiff pleaded, inter alia, that the Defendants knew that the online edition of the publication had worldwide circulation and that portraying him as a drug trafficker and criminal would have grave consequences, including denial of visas and restriction of entry into foreign countries.
8. The Plaintiff further averred that the Defendants knew or ought to have known that he was not a shareholder in the alleged depot through which cocaine was said to have been smuggled; that no drugs were discovered at the said depot; and that the containers cleared through the depot never contained any drugs at all.
9. He also pleaded that the Defendants persistently repeated the defamatory publication online and prominently juxtaposed his name with the offending words.
10. By reason of the said publication, the Plaintiff averred that he suffered loss of reputation, business reputation and business profits and had been greatly injured in his standing before reasonable members of the public.
11. The Plaintiff further contended that the Defendants would continue publishing defamatory material concerning him unless restrained by the Court and that despite demand and notice of intention to sue, the Defendants had continued with the publication to his detriment.
12. On the basis of the foregoing, the Plaintiff sought against the Defendants jointly and severally exemplary and aggravated damages for defamation, general damages for defamation, special damages, a permanent injunction restraining further publication of defamatory statements concerning him, costs of the suit together with interest and such further relief as the Court would deem just and expedient.
13. The Defendants entered appearance and filed a joint statement of defence dated 10th March, 2005 wherein they denied the Plaintiff’s claim in its entirety save for admitting the descriptive averments relating to the identities of the parties and the jurisdiction of the Court. The Defendants specifically denied publishing the words complained of in the plaint on the 1st Defendant’s website on 21st January, 2005 and denied that the words complained of were defamatory or capable of bearing the meanings attributed to them by the Plaintiff.
14. The Defendants further denied allegations of malice, ill will, spite and falsity and denied that the Plaintiff suffered the loss and damage alleged in the plaint. The Defendants, however, pleaded that on 5th January, 2005, the 1st Defendant published an article under the heading “Cocaine: Mwau bid to gag Media” and averred that the said words constituted only the heading of a much longer article, the full context and true meaning of which had not been reproduced in the plaint.
15. The Defendants contended that the impugned words, when read in their proper context, were not capable of bearing the defamatory meanings alleged by the Plaintiff. In addition, the Defendants pleaded that the publication was absolutely privileged under the Defamation Act as it constituted a fair and accurate contemporaneous report of proceedings held publicly before the High Court at Nairobi.
16. In the alternative and without prejudice to the foregoing, the Defendants pleaded the defence of fair comment on matters of public interest and further invoked the defence of responsible public journalism and qualified privilege. They averred that the subject matter of the publication concerned matters of genuine public concern and interest and that the journalism employed was responsible, relying on the principles set out in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
17. The Defendants further denied any intention to continue publishing the impugned words and averred that the Plaintiff was not entitled to the injunctive relief sought. They also contended that the plaint disclosed no reasonable cause of action against them and constituted an abuse of the process of the Court.
B. THE PLAINTIFF’S CASE.
18. The Plaintiff testified as PW1 and adopted the contents of his statement dated 19th March, 2005. In his statement, the Plaintiff described himself as a businessman, trained fraud specialist and politician. He stated that he was a former Member of Parliament for Kilome Constituency, the founding chairman of the Party of Independent Candidates of Kenya (PICK), a former Director of the defunct Kenya Anti-Corruption Authority and a presidential candidate in the 1992 general elections. He further stated that he vied for the senatorial position for Makueni County during the 2013 general elections.
19. PW1 testified that he was an honest, hardworking and law-abiding businessman of both local and international repute who had never knowingly been involved in criminal activities either directly or indirectly. He described himself as a person of high moral character and good conduct. He further testified that he had received several national honours and awards including the Head of State Commendation (HSC), Order of the Grand Warrior (OGW), Member of the Burning Spear (MBS) and Chief of the Burning Spear (CBS), as well as medals in respect of service in the Police Force. He also stated that he was a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Certified Fraud Examiner (CFE), an Environmental Lead Expert and consultant and an ISO 27001 Information Security Lead Auditor and Implementer.
20. In addition, he testified that he was an internationally recognized sportsman who had represented Kenya in the Olympic Games, Commonwealth Games and other international competitions.
21. The Plaintiff described the 1st Defendant as a media house engaged in publishing newspapers and disseminating news for gain. He stated that the 2nd Defendant was at the material time the Managing Director of the 1st Defendant and responsible for the publication of the impugned article, while the 3rd Defendant was the Managing Editor responsible for editing the newspaper and its online publications.
22. PW1 testified that around 14th December, 2004, the Kenya Police seized approximately one ton of cocaine from two locations, namely Rocky House in Malindi and a go-down in Embakasi, Nairobi, belonging to Rakshap Holdings Limited. He stated that the Defendants were aware of the said seizure and of the fact that persons suspected to have been involved had been arrested, interrogated and some charged in Criminal Case No. 3165 of 2004.
23. The Plaintiff stated that following the seizure, the Defendants embarked on what he termed as a propaganda campaign aimed at linking him with the cocaine haul and criminal activities relating thereto. He testified that the Defendants falsely connected Pepe Inland Port with the cocaine seizure and falsely portrayed him as the owner of the said facility despite allegedly knowing that the information was untrue. He further testified that being aggrieved by the publications, he reported the matter to the Criminal Investigations Department by a letter dated 30th December, 2004, but that the Defendants subsequently portrayed the complaint as an attempt to threaten or gag the media.
24. PW1 maintained that the Defendants knew at all material times that he was not involved in any criminal activity connected with the cocaine seizure but nevertheless continued publishing defamatory material concerning him. He further testified that in subsequent proceedings involving the 1st Defendant and another party in Civil Case No. 511 of 2011, the Defendants themselves filed evidence which, according to him, confirmed the facts surrounding the seizure and demonstrated that the allegations against him were false.
25. The Plaintiff further testified that despite assurances allegedly given by the Defendants to the Court that they would cease publication of defamatory material concerning him, the publications continued to remain accessible online through The Standard Digital Website and continued to portray him internationally as a drug trafficker. He stated that such continued online publication exposed him to injury and the risk of adverse treatment by foreign governments and law enforcement agencies.
26. PW1 testified that on 21st January, 2005, the Defendants published in the online edition of The Standard Newspaper the words “Cocaine: Mwau bid to gag media” and further described him as “a shareholder in a container depot through which Ksh.6 billion cocaine haul was cleared.” He stated that the words referred to and concerned him and were intended to injure his reputation.
27. The Plaintiff testified that the publication was understood by ordinary members of the public to mean that he was linked to the Ksh.6 billion cocaine haul; that he was involved in crime and corruption; that he was a shareholder in a depot through which cocaine was smuggled; that he was a criminal, drug peddler and drug-haul suspect; that he was guilty of offences under the Narcotic Drugs and Psychotropic Substances Act; that he was involved in dubious drug dealings; that he lacked integrity and trustworthiness; and that he was hostile to press freedom and employed improper means in dealing with legitimate issues.
28. PW1 further testified that the publication was actuated by malice, ill will and spite. He stated that the Defendants were aware of the wide global circulation of the online publication and appreciated the grave consequences of portraying him internationally as a drug trafficker. According to him, the Defendants knew or ought to have known that he was not a shareholder in the alleged depot through which drugs were purportedly smuggled, that no drugs had been discovered at the depot and that the containers cleared through the depot did not contain narcotic drugs. He also testified that the Defendants prominently juxtaposed his name with the impugned words and repeatedly posted the defamatory material online.
29. The Plaintiff testified that the Defendants knowingly and maliciously published false statements intended to scandalize, humiliate and expose him to public ridicule, contempt and hatred. He stated that the Defendants manufactured false facts and used strong and emphatic language calculated to cause injury to his reputation. According to PW1, the Defendants’ conduct amounted to irresponsible journalism and was motivated by malice and profit.
30. PW1 further testified that as a result of the publications, he suffered injury to his reputation and standing in society and was greatly lowered in the estimation of right-thinking members of the public. He stated that the publications adversely affected his businesses both locally and internationally and caused him loss of business, loss of profits and injury to his personal reputation. He further testified that he suffered considerable distress, humiliation, embarrassment, mental anguish and public scandal as a consequence of the publications.
31. The Plaintiff also testified that the Defendants failed to seek his comments or clarification before publishing the impugned articles and that despite demands and notice of intention to sue, they continued to publish defamatory material concerning him. He expressed the view that the Defendants acted recklessly as to the truthfulness and consequences of the allegations made against him.
32. PW1 concluded by stating that unless restrained by a permanent injunction, the Defendants would continue publishing false statements linking him to criminal activities for profit and in bad faith. He urged the Court to grant him exemplary and aggravated damages, special damages, a permanent injunction restraining further defamatory publication and such other reliefs as sought in the amended plaint.
33. The Plaintiff produced, as PEXh1, the results of a Google search conducted in relation to the matter. The search results indicate that the first item appearing on the results page is titled:
The Standard | Online Edition
Cocaine: Mwau bid to gag media Mr John Harun Mwau wants the High Court to permanently bar the media from publishing reports linking him to drug trafficking. …..
www.eastandard.net/archives/ cl/default.php?date=5/1/2005 – 52k – Cached – Similar pages
34. The Plaintiff further produced a total of fifty (50) additional documents, contained in the list of documents dated 18th March, 2014, as PExh2 to PExh51. These documents primarily related to the Plaintiff’s personal achievements, professional accomplishments, qualifications, career progression and standing within his profession. The Plaintiff relied on these documents in support of his case and to demonstrate his reputation, credibility and stature both professionally and publicly.
35. Upon being cross examined by Mr. Wepoh, learned Counsel for the Defendants, the Plaintiff stated that there were only three documents listed in his initial bundle of documents in support of his case. He stated that the impugned publication was contained in the documents, being The Standard online edition, together with several related items.
36. The Plaintiff further clarified that the defamatory words complained of were also set out in the amended plaint. He stated that although the online publication was attributed to The Standard, one of the referenced sources, AllAfrica.com, was not The Standard itself but had indicated that it had picked the article from The Standard.
37. The Plaintiff stated that “E.A. Standard” referred to the East African Standard, as pleaded in the amended plaint, and reiterated that the plaint specifically referred to the online edition of The Standard newspaper.
38. He further stated that the Defence contained an admission by the Defendants regarding publication of the article where reference was made to the publication. He also stated that the Africa Online classification of the article placed it under “crime and corruption.”
39. The Plaintiff acknowledged that he had not produced a certificate of electronic evidence in support of the online publication.
40. In relation to the subject matter of the publication, the Plaintiff stated that he was the chairman of Pepe Container Depot and that the article referred to him as being associated with Pepe. He maintained that Pepe Container Depot had never received any drugs and that no drugs had ever been found or recovered at the facility. He further stated that Pepe had only been under investigation and that no container with drugs had been seized from the depot.
41. The Plaintiff also stated that the investigations did not involve drug trafficking at Pepe Container Depot, which he described as a customs area where operations involved officers from the Kenya Revenue Authority, Anti-Narcotics Unit, Kenya Bureau of Standards, Directorate of Criminal Investigations, Port Health and KEPHIS.
42. The Plaintiff further stated that containers passing through Pepe had serial numbers and identifiable ownership, and that the containers referred to in the investigations contained only furniture. According to the Plaintiff, the containers only passed through Pepe for customs clearance purposes.
43. The Plaintiff called George Masila Katio, who testified as PW2 and adopted the contents of his witness statement dated 23rd February, 2024. In his testimony, PW2 stated that he that he had known the Plaintiff, since the 1990s after being introduced to him by his father, who had known the Plaintiff for a long time.
44. PW2 testified that he admired the Plaintiff for his hard work and dedication and recalled that the Plaintiff would report to his office as early as 5.00 a.m. daily. He further stated that from the time he came to know the Plaintiff, he regarded him as a law-abiding citizen. According to PW2, during visits to the Plaintiff’s office in the company of his father, the Plaintiff would advise him to work hard and obey the law. He also testified that his father informed him that the Plaintiff was a law-abiding citizen who regularly resorted to the courts in challenging impunity and unlawful acts by the government. PW2 further described the Plaintiff as a person who hated injustice and was generous.
45. PW2 testified that on 5th January, 2005, while in the office, he saw a headline in The Standard newspaper titled “Cocaine: Mwau bid to gag media.” He further stated that on or about 21st January, 2005, while browsing the internet, he came across an online publication by the Standard newspaper containing the words: “Cocaine: Mwau bid to gag media Crime and corruption Businessman John Harun Mwau – a shareholder in a container depot through which the Ksh.6 billion cocaine haul was cleared – yesterday spent more than three hours…”.
46. PW2 testified that upon reading the article, it became immediately apparent to him that the publication referred to the Plaintiff, whom he had always admired, respected and held in high esteem as a law-abiding person. He stated that the article conveyed that the Plaintiff was a shareholder in a container depot through which the Ksh.6 billion cocaine haul had passed.
47. PW2 further testified that he understood the publication to mean that the Plaintiff was connected to the Ksh.6 billion cocaine haul and that the Plaintiff was seeking to gag the media from publishing information linking him to the drugs. According to PW2, the publication caused him to lower the esteem and respect with which he had previously regarded the Plaintiff, as he now viewed him as a person lacking integrity. He stated that he found it contradictory that the Plaintiff, who had always advised him to obey the law and work hard, was allegedly connected to a major drug haul.
48. PW2 testified that following the publication, he began avoiding and shunning the Plaintiff because he feared that being associated with him would negatively affect his own business interests. He further testified that at a later stage, a mutual acquaintance known as Mr. Muli contacted him and inquired why he had not been visiting the Plaintiff’s office. PW2 stated that he informed Mr. Muli that he had chosen to distance himself from the Plaintiff because of the media reports connecting the Plaintiff to the cocaine haul.
49. PW2 further testified that in November 2013, he received a call from Mr. Muli, who informed him that the Plaintiff had requested him to contact PW2 and request him to testify in the present matter. PW2 stated that it was only after persistent requests that he agreed to record and adopt his witness statement.
50. Upon being cross examined by Mr. Wepoh, PW2 stated that he only knew about the present case brought against The Standard by the Plaintiff. He further stated that he did not know one Gilford Muli Kenyatta and was not aware whether his witness statement was similar to his.
51. PW2 confirmed that he had known the Plaintiff since the 1990s and stated that he was 49 years old at the time of testifying, having been approximately 29 to 30 years old in 2005. He reiterated that the Plaintiff was a long-standing friend of his father.
52. PW2 testified that on 5th January, 2005, he was in his office at Jomo Kenyatta International Airport (JKIA) when he saw a newspaper headline which attracted his attention because it contained the words “Mwau” and “Cocaine”. He further stated that on 21st January, 2005, while browsing the internet, he came across the words “Mwau bid to gag media” and connected the same to the earlier headline he had seen.
53. PW2 stated that he could not recall the specific website where the words were published. He further stated that he knew the Plaintiff as a law-abiding and hardworking individual and that upon reading the publications, he associated the Plaintiff with cocaine-related activities.
54. PW2 testified that his perception of the Plaintiff changed after reading the publications and that the publications influenced how he viewed the Plaintiff. He further stated that his perception had not changed thereafter.
55. The Plaintiff called Peter Njeru Nthigah, who testified as PW3 and adopted the contents of his witness statement dated 7th May, 2024. PW3 testified that he was an officer employed by the National Police Service and was at the time serving as a Commissioner of Police and Regional Head of the Directorate of Criminal Investigations (DCI) for Nairobi City County. He stated that he had been summoned to testify and produce documents concerning investigations into the seizure of cocaine in Kenya in December, 2004.
56. PW3 testified that he had served in the Police Service as an investigator for approximately 35 years, of which over 18 years had been spent in the Anti-Narcotics Department between 1989 and 2006. He stated that he possessed extensive training and experience in anti-narcotics investigations, including training in narcotics investigations and operations both locally and internationally, among them specialized training in Germany at the Bundes Kriminal Arms Academy (BKA Academy).
57. PW3 further testified that in the year 2004, he held the rank of Chief Inspector under the Directorate of Criminal Investigations and was the officer in charge of the Kenya Anti-Narcotics Unit based at CID Headquarters. He stated that he was aware that the dispute before the Court concerned an online publication by the Defendants dated 21st January, 2005 bearing the headline “Cocaine: Mwau bid to gag media” and referring to the Plaintiff as “a shareholder in a container depot through which the Ksh.6 billion cocaine haul was cleared.”
58. According to PW3, the publication by the Defendants alleging that the Ksh.6 billion cocaine haul had been cleared through Pepe Inland Container Depot was false and untrue. He categorically stated that the Ksh.6.392 billion worth of cocaine was never cleared through Pepe Limited.
59. PW3 testified that he was the lead investigator in respect of the seizure of a total of 1.1415 tonnes of cocaine on 14th December, 2004 and that he conducted investigations both in Kenya and in the Netherlands. He stated that he had personal knowledge of the matters in issue and relied on documentary evidence gathered during the investigations.
60. He testified that on 14th December, 2004, the Kenya Police seized a total of 1.1415 tonnes of cocaine valued at approximately Ksh.6.392 billion in Nairobi and Malindi. He stated that 304 kilograms of cocaine with a street value of Ksh.1.702 billion were seized at Godown No. 20 along Old North Airport Road in Embakasi, Nairobi, concealed in a false bottom of container number MAEU 5650860. He further testified that simultaneously, police officers seized 837.5 kilograms of cocaine valued at Ksh.4.69 billion at Rocky House situated on Plot No. 1883 in Casuarina Area, Malindi, where the drugs were concealed beneath the deck plate of a motor boat.
61. PW3 stated that following the investigations and seizures, several suspects including David Mugo Kiragu, Railton Muthungu, James Nderitu, Ricci Angelo, Estella Duminga Furuli, Tansukhal Jivanal Thanki, George Stanley Wango alias George Njoya Wango, David Alexander Gachago and Central Valley Supplies Co. Ltd were arrested and charged in Criminal Case No. 3165 of 2004 before the Chief Magistrate’s Court at Nairobi. He testified that judgement in the said criminal case was delivered on 28th June, 2006.
62. PW3 further testified that apart from the seizures in Embakasi, Malindi and a separate seizure of 1.295 kilograms from a Tanzanian national, no other cocaine was seized in Kenya in the year 2004. He therefore maintained that it was false for the Defendants to allege that another tonne of cocaine or any quantity of drugs had been seized at Pepe Inland Container Depot. He explained that the Anti-Narcotics Department maintained comprehensive records of all narcotics seizures in Kenya.
63. PW3 testified that investigations also extended to the Netherlands after authorities there informed Kenyan investigators that 295 kilograms of cocaine had been discovered in two containers at the Port of Antwerp in Belgium. The containers had allegedly originated from Mombasa, Kenya. Following a controlled delivery operation in the Netherlands, several Dutch suspects together with one Kenyan, George Kiragu, were arrested in connection with the seizure.
64. He testified that investigations established that the containers in question had originally been imported into Kenya through the Port of Mombasa in January, 2004 and contained assorted second-hand furniture consigned to Central Valley Supplies Limited. PW3 stated that the cargo was subjected to scrutiny by customs authorities and anti-smuggling teams because of identified irregularities and that the containers underwent 100% verification at the Port of Mombasa. According to PW3, the containers were found to contain only assorted household furniture and no narcotic drugs or contraband.
65. PW3 further testified that after examination at the Port of Mombasa, the containers were forwarded under customs seal and police escort to Pepe Inland Container Depot where they remained under customs control. He explained that the importer subsequently entered the goods for home use and that the containers were again examined and verified at Pepe Inland Container Depot by customs officers together with officers from various government agencies, including Anti-Narcotics officers, Public Health officials, Kenya Bureau of Standards officers and the police. PW3 stated that the containers were again found to contain only used furniture and that customs duties and warehouse charges were duly paid before the goods were released.
66. According to PW3, the staff of Pepe Inland Container Depot played no role in the examination or verification of the containers as such functions were performed exclusively by customs and government officials. He emphasized that the allegation by the Defendants that the containers were cleared with drugs at Pepe Inland Container Depot was therefore false and without basis.
67. PW3 further testified that investigations established that after the containers were released from Pepe Inland Container Depot, they were later transported by George Kiragu and his associates back to Mombasa for onward shipment to Antwerp. He stated that Pepe Inland Container Depot did not receive cargo for export and therefore had no further contact with the containers after they were released to the importer.
68. He testified that investigations traced the movement of the containers from Pepe Inland Container Depot to Mombasa through various transporters and established that George Kiragu coordinated the transportation and shipment of the containers. PW3 further testified that investigations linked George Kiragu and several Dutch nationals to activities at Godown No. 20 in Embakasi and Rocky House in Malindi where the narcotics were eventually discovered. According to PW3, evidence gathered during the investigations showed that false bottoms had been created in the containers and that specialized welding equipment had been used in the concealment of the drugs.
69. PW3 also testified that George Kiragu had leased both Rocky House in Malindi and Godown No. 20 in Embakasi together with Dutch associates. He further stated that investigations established that George Kiragu, through Central Valley Supplies Limited, had imported the motor boat from which the cocaine in Malindi was recovered.
70. PW3 testified that investigations by Kenyan and international agencies, including the United Nations Office on Drugs and Crime (UNODC), the United States Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Attorney General’s office and the Government Chemist, co
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1. The Plaintiff herein, by an amended plaint dated 5th June, 2006, brought this suit against the Defendants jointly and severally seeking damages for defamation arising from the publication of an article in the online edition of the Standard Newspaper.
2. The Plaintiff pleaded that he is an adult businessman of local and international repute residing and working for gain in Nairobi within the Republic of Kenya. The Plaintiff described the 1st Defendant as a limited liability company and publisher of The Standard and Sunday Standard newspapers with national and international circulation including online editions, while the 2nd Defendant was pleaded to be the Managing Director and Chief Executive Officer of the 1st Defendant responsible for the managerial and administrative affairs of the company. The 3rd Defendant was described as the Managing Editor of the 1st Defendant responsible for the collection, collation, editing and publication of material on behalf of the 1st Defendant.
3. The Plaintiff averred that on 21st January, 2005, the Defendants falsely and maliciously published in the online edition of the Standard Newspaper words concerning him under the heading “Cocaine: Mwau bid to gag media” and further described him as “Businessman John Harun Mwau – a shareholder in a container depot through which the Ksh.6 billion cocaine haul was cleared – yesterday spent more than three hours…”.
4. The Plaintiff pleaded that the publication referred to and concerned him and that the same was defamatory in its natural and ordinary meaning.
5. The Plaintiff particularized the defamatory meanings allegedly conveyed by the impugned publication as being that he was linked to a Ksh.6 billion cocaine haul; that he was involved in crime and corruption; that he was a shareholder in a depot through which cocaine was smuggled; that he was a criminal, drug peddler and drug-haul suspect; that he was guilty of offences under the Narcotic Drugs and Psychotropic Substances Act, 1994; that he was involved in dubious drug deals; and that he was untrustworthy and lacked integrity.
6. The Plaintiff further pleaded that the publication was false and actuated by malice, ill will and spite and that the Defendants intended thereby to injure his reputation and character in the estimation of right-thinking members of the public.
7. In support of the allegation of malice, the Plaintiff pleaded, inter alia, that the Defendants knew that the online edition of the publication had worldwide circulation and that portraying him as a drug trafficker and criminal would have grave consequences, including denial of visas and restriction of entry into foreign countries.
8. The Plaintiff further averred that the Defendants knew or ought to have known that he was not a shareholder in the alleged depot through which cocaine was said to have been smuggled; that no drugs were discovered at the said depot; and that the containers cleared through the depot never contained any drugs at all.
9. He also pleaded that the Defendants persistently repeated the defamatory publication online and prominently juxtaposed his name with the offending words.
10. By reason of the said publication, the Plaintiff averred that he suffered loss of reputation, business reputation and business profits and had been greatly injured in his standing before reasonable members of the public.
11. The Plaintiff further contended that the Defendants would continue publishing defamatory material concerning him unless restrained by the Court and that despite demand and notice of intention to sue, the Defendants had continued with the publication to his detriment.
12. On the basis of the foregoing, the Plaintiff sought against the Defendants jointly and severally exemplary and aggravated damages for defamation, general damages for defamation, special damages, a permanent injunction restraining further publication of defamatory statements concerning him, costs of the suit together with interest and such further relief as the Court would deem just and expedient.
13. The Defendants entered appearance and filed a joint statement of defence dated 10th March, 2005 wherein they denied the Plaintiff’s claim in its entirety save for admitting the descriptive averments relating to the identities of the parties and the jurisdiction of the Court. The Defendants specifically denied publishing the words complained of in the plaint on the 1st Defendant’s website on 21st January, 2005 and denied that the words complained of were defamatory or capable of bearing the meanings attributed to them by the Plaintiff.
14. The Defendants further denied allegations of malice, ill will, spite and falsity and denied that the Plaintiff suffered the loss and damage alleged in the plaint. The Defendants, however, pleaded that on 5th January, 2005, the 1st Defendant published an article under the heading “Cocaine: Mwau bid to gag Media” and averred that the said words constituted only the heading of a much longer article, the full context and true meaning of which had not been reproduced in the plaint.
15. The Defendants contended that the impugned words, when read in their proper context, were not capable of bearing the defamatory meanings alleged by the Plaintiff. In addition, the Defendants pleaded that the publication was absolutely privileged under the Defamation Act as it constituted a fair and accurate contemporaneous report of proceedings held publicly before the High Court at Nairobi.
16. In the alternative and without prejudice to the foregoing, the Defendants pleaded the defence of fair comment on matters of public interest and further invoked the defence of responsible public journalism and qualified privilege. They averred that the subject matter of the publication concerned matters of genuine public concern and interest and that the journalism employed was responsible, relying on the principles set out in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
17. The Defendants further denied any intention to continue publishing the impugned words and averred that the Plaintiff was not entitled to the injunctive relief sought. They also contended that the plaint disclosed no reasonable cause of action against them and constituted an abuse of the process of the Court.
B. THE PLAINTIFF’S CASE.
18. The Plaintiff testified as PW1 and adopted the contents of his statement dated 19th March, 2005. In his statement, the Plaintiff described himself as a businessman, trained fraud specialist and politician. He stated that he was a former Member of Parliament for Kilome Constituency, the founding chairman of the Party of Independent Candidates of Kenya (PICK), a former Director of the defunct Kenya Anti-Corruption Authority and a presidential candidate in the 1992 general elections. He further stated that he vied for the senatorial position for Makueni County during the 2013 general elections.
19. PW1 testified that he was an honest, hardworking and law-abiding businessman of both local and international repute who had never knowingly been involved in criminal activities either directly or indirectly. He described himself as a person of high moral character and good conduct. He further testified that he had received several national honours and awards including the Head of State Commendation (HSC), Order of the Grand Warrior (OGW), Member of the Burning Spear (MBS) and Chief of the Burning Spear (CBS), as well as medals in respect of service in the Police Force. He also stated that he was a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Certified Fraud Examiner (CFE), an Environmental Lead Expert and consultant and an ISO 27001 Information Security Lead Auditor and Implementer.
20. In addition, he testified that he was an internationally recognized sportsman who had represented Kenya in the Olympic Games, Commonwealth Games and other international competitions.
21. The Plaintiff described the 1st Defendant as a media house engaged in publishing newspapers and disseminating news for gain. He stated that the 2nd Defendant was at the material time the Managing Director of the 1st Defendant and responsible for the publication of the impugned article, while the 3rd Defendant was the Managing Editor responsible for editing the newspaper and its online publications.
22. PW1 testified that around 14th December, 2004, the Kenya Police seized approximately one ton of cocaine from two locations, namely Rocky House in Malindi and a go-down in Embakasi, Nairobi, belonging to Rakshap Holdings Limited. He stated that the Defendants were aware of the said seizure and of the fact that persons suspected to have been involved had been arrested, interrogated and some charged in Criminal Case No. 3165 of 2004.
23. The Plaintiff stated that following the seizure, the Defendants embarked on what he termed as a propaganda campaign aimed at linking him with the cocaine haul and criminal activities relating thereto. He testified that the Defendants falsely connected Pepe Inland Port with the cocaine seizure and falsely portrayed him as the owner of the said facility despite allegedly knowing that the information was untrue. He further testified that being aggrieved by the publications, he reported the matter to the Criminal Investigations Department by a letter dated 30th December, 2004, but that the Defendants subsequently portrayed the complaint as an attempt to threaten or gag the media.
24. PW1 maintained that the Defendants knew at all material times that he was not involved in any criminal activity connected with the cocaine seizure but nevertheless continued publishing defamatory material concerning him. He further testified that in subsequent proceedings involving the 1st Defendant and another party in Civil Case No. 511 of 2011, the Defendants themselves filed evidence which, according to him, confirmed the facts surrounding the seizure and demonstrated that the allegations against him were false.
25. The Plaintiff further testified that despite assurances allegedly given by the Defendants to the Court that they would cease publication of defamatory material concerning him, the publications continued to remain accessible online through The Standard Digital Website and continued to portray him internationally as a drug trafficker. He stated that such continued online publication exposed him to injury and the risk of adverse treatment by foreign governments and law enforcement agencies.
26. PW1 testified that on 21st January, 2005, the Defendants published in the online edition of The Standard Newspaper the words “Cocaine: Mwau bid to gag media” and further described him as “a shareholder in a container depot through which Ksh.6 billion cocaine haul was cleared.” He stated that the words referred to and concerned him and were intended to injure his reputation.
27. The Plaintiff testified that the publication was understood by ordinary members of the public to mean that he was linked to the Ksh.6 billion cocaine haul; that he was involved in crime and corruption; that he was a shareholder in a depot through which cocaine was smuggled; that he was a criminal, drug peddler and drug-haul suspect; that he was guilty of offences under the Narcotic Drugs and Psychotropic Substances Act; that he was involved in dubious drug dealings; that he lacked integrity and trustworthiness; and that he was hostile to press freedom and employed improper means in dealing with legitimate issues.
28. PW1 further testified that the publication was actuated by malice, ill will and spite. He stated that the Defendants were aware of the wide global circulation of the online publication and appreciated the grave consequences of portraying him internationally as a drug trafficker. According to him, the Defendants knew or ought to have known that he was not a shareholder in the alleged depot through which drugs were purportedly smuggled, that no drugs had been discovered at the depot and that the containers cleared through the depot did not contain narcotic drugs. He also testified that the Defendants prominently juxtaposed his name with the impugned words and repeatedly posted the defamatory material online.
29. The Plaintiff testified that the Defendants knowingly and maliciously published false statements intended to scandalize, humiliate and expose him to public ridicule, contempt and hatred. He stated that the Defendants manufactured false facts and used strong and emphatic language calculated to cause injury to his reputation. According to PW1, the Defendants’ conduct amounted to irresponsible journalism and was motivated by malice and profit.
30. PW1 further testified that as a result of the publications, he suffered injury to his reputation and standing in society and was greatly lowered in the estimation of right-thinking members of the public. He stated that the publications adversely affected his businesses both locally and internationally and caused him loss of business, loss of profits and injury to his personal reputation. He further testified that he suffered considerable distress, humiliation, embarrassment, mental anguish and public scandal as a consequence of the publications.
31. The Plaintiff also testified that the Defendants failed to seek his comments or clarification before publishing the impugned articles and that despite demands and notice of intention to sue, they continued to publish defamatory material concerning him. He expressed the view that the Defendants acted recklessly as to the truthfulness and consequences of the allegations made against him.
32. PW1 concluded by stating that unless restrained by a permanent injunction, the Defendants would continue publishing false statements linking him to criminal activities for profit and in bad faith. He urged the Court to grant him exemplary and aggravated damages, special damages, a permanent injunction restraining further defamatory publication and such other reliefs as sought in the amended plaint.
33. The Plaintiff produced, as PEXh1, the results of a Google search conducted in relation to the matter. The search results indicate that the first item appearing on the results page is titled:
The Standard | Online Edition
Cocaine: Mwau bid to gag media Mr John Harun Mwau wants the High Court to permanently bar the media from publishing reports linking him to drug trafficking. …..
www.eastandard.net/archives/ cl/default.php?date=5/1/2005 – 52k – Cached – Similar pages
34. The Plaintiff further produced a total of fifty (50) additional documents, contained in the list of documents dated 18th March, 2014, as PExh2 to PExh51. These documents primarily related to the Plaintiff’s personal achievements, professional accomplishments, qualifications, career progression and standing within his profession. The Plaintiff relied on these documents in support of his case and to demonstrate his reputation, credibility and stature both professionally and publicly.
35. Upon being cross examined by Mr. Wepoh, learned Counsel for the Defendants, the Plaintiff stated that there were only three documents listed in his initial bundle of documents in support of his case. He stated that the impugned publication was contained in the documents, being The Standard online edition, together with several related items.
36. The Plaintiff further clarified that the defamatory words complained of were also set out in the amended plaint. He stated that although the online publication was attributed to The Standard, one of the referenced sources, AllAfrica.com, was not The Standard itself but had indicated that it had picked the article from The Standard.
37. The Plaintiff stated that “E.A. Standard” referred to the East African Standard, as pleaded in the amended plaint, and reiterated that the plaint specifically referred to the online edition of The Standard newspaper.
38. He further stated that the Defence contained an admission by the Defendants regarding publication of the article where reference was made to the publication. He also stated that the Africa Online classification of the article placed it under “crime and corruption.”
39. The Plaintiff acknowledged that he had not produced a certificate of electronic evidence in support of the online publication.
40. In relation to the subject matter of the publication, the Plaintiff stated that he was the chairman of Pepe Container Depot and that the article referred to him as being associated with Pepe. He maintained that Pepe Container Depot had never received any drugs and that no drugs had ever been found or recovered at the facility. He further stated that Pepe had only been under investigation and that no container with drugs had been seized from the depot.
41. The Plaintiff also stated that the investigations did not involve drug trafficking at Pepe Container Depot, which he described as a customs area where operations involved officers from the Kenya Revenue Authority, Anti-Narcotics Unit, Kenya Bureau of Standards, Directorate of Criminal Investigations, Port Health and KEPHIS.
42. The Plaintiff further stated that containers passing through Pepe had serial numbers and identifiable ownership, and that the containers referred to in the investigations contained only furniture. According to the Plaintiff, the containers only passed through Pepe for customs clearance purposes.
43. The Plaintiff called George Masila Katio, who testified as PW2 and adopted the contents of his witness statement dated 23rd February, 2024. In his testimony, PW2 stated that he that he had known the Plaintiff, since the 1990s after being introduced to him by his father, who had known the Plaintiff for a long time.
44. PW2 testified that he admired the Plaintiff for his hard work and dedication and recalled that the Plaintiff would report to his office as early as 5.00 a.m. daily. He further stated that from the time he came to know the Plaintiff, he regarded him as a law-abiding citizen. According to PW2, during visits to the Plaintiff’s office in the company of his father, the Plaintiff would advise him to work hard and obey the law. He also testified that his father informed him that the Plaintiff was a law-abiding citizen who regularly resorted to the courts in challenging impunity and unlawful acts by the government. PW2 further described the Plaintiff as a person who hated injustice and was generous.
45. PW2 testified that on 5th January, 2005, while in the office, he saw a headline in The Standard newspaper titled “Cocaine: Mwau bid to gag media.” He further stated that on or about 21st January, 2005, while browsing the internet, he came across an online publication by the Standard newspaper containing the words: “Cocaine: Mwau bid to gag media Crime and corruption Businessman John Harun Mwau – a shareholder in a container depot through which the Ksh.6 billion cocaine haul was cleared – yesterday spent more than three hours…”.
46. PW2 testified that upon reading the article, it became immediately apparent to him that the publication referred to the Plaintiff, whom he had always admired, respected and held in high esteem as a law-abiding person. He stated that the article conveyed that the Plaintiff was a shareholder in a container depot through which the Ksh.6 billion cocaine haul had passed.
47. PW2 further testified that he understood the publication to mean that the Plaintiff was connected to the Ksh.6 billion cocaine haul and that the Plaintiff was seeking to gag the media from publishing information linking him to the drugs. According to PW2, the publication caused him to lower the esteem and respect with which he had previously regarded the Plaintiff, as he now viewed him as a person lacking integrity. He stated that he found it contradictory that the Plaintiff, who had always advised him to obey the law and work hard, was allegedly connected to a major drug haul.
48. PW2 testified that following the publication, he began avoiding and shunning the Plaintiff because he feared that being associated with him would negatively affect his own business interests. He further testified that at a later stage, a mutual acquaintance known as Mr. Muli contacted him and inquired why he had not been visiting the Plaintiff’s office. PW2 stated that he informed Mr. Muli that he had chosen to distance himself from the Plaintiff because of the media reports connecting the Plaintiff to the cocaine haul.
49. PW2 further testified that in November 2013, he received a call from Mr. Muli, who informed him that the Plaintiff had requested him to contact PW2 and request him to testify in the present matter. PW2 stated that it was only after persistent requests that he agreed to record and adopt his witness statement.
50. Upon being cross examined by Mr. Wepoh, PW2 stated that he only knew about the present case brought against The Standard by the Plaintiff. He further stated that he did not know one Gilford Muli Kenyatta and was not aware whether his witness statement was similar to his.
51. PW2 confirmed that he had known the Plaintiff since the 1990s and stated that he was 49 years old at the time of testifying, having been approximately 29 to 30 years old in 2005. He reiterated that the Plaintiff was a long-standing friend of his father.
52. PW2 testified that on 5th January, 2005, he was in his office at Jomo Kenyatta International Airport (JKIA) when he saw a newspaper headline which attracted his attention because it contained the words “Mwau” and “Cocaine”. He further stated that on 21st January, 2005, while browsing the internet, he came across the words “Mwau bid to gag media” and connected the same to the earlier headline he had seen.
53. PW2 stated that he could not recall the specific website where the words were published. He further stated that he knew the Plaintiff as a law-abiding and hardworking individual and that upon reading the publications, he associated the Plaintiff with cocaine-related activities.
54. PW2 testified that his perception of the Plaintiff changed after reading the publications and that the publications influenced how he viewed the Plaintiff. He further stated that his perception had not changed thereafter.
55. The Plaintiff called Peter Njeru Nthigah, who testified as PW3 and adopted the contents of his witness statement dated 7th May, 2024. PW3 testified that he was an officer employed by the National Police Service and was at the time serving as a Commissioner of Police and Regional Head of the Directorate of Criminal Investigations (DCI) for Nairobi City County. He stated that he had been summoned to testify and produce documents concerning investigations into the seizure of cocaine in Kenya in December, 2004.
56. PW3 testified that he had served in the Police Service as an investigator for approximately 35 years, of which over 18 years had been spent in the Anti-Narcotics Department between 1989 and 2006. He stated that he possessed extensive training and experience in anti-narcotics investigations, including training in narcotics investigations and operations both locally and internationally, among them specialized training in Germany at the Bundes Kriminal Arms Academy (BKA Academy).
57. PW3 further testified that in the year 2004, he held the rank of Chief Inspector under the Directorate of Criminal Investigations and was the officer in charge of the Kenya Anti-Narcotics Unit based at CID Headquarters. He stated that he was aware that the dispute before the Court concerned an online publication by the Defendants dated 21st January, 2005 bearing the headline “Cocaine: Mwau bid to gag media” and referring to the Plaintiff as “a shareholder in a container depot through which the Ksh.6 billion cocaine haul was cleared.”
58. According to PW3, the publication by the Defendants alleging that the Ksh.6 billion cocaine haul had been cleared through Pepe Inland Container Depot was false and untrue. He categorically stated that the Ksh.6.392 billion worth of cocaine was never cleared through Pepe Limited.
59. PW3 testified that he was the lead investigator in respect of the seizure of a total of 1.1415 tonnes of cocaine on 14th December, 2004 and that he conducted investigations both in Kenya and in the Netherlands. He stated that he had personal knowledge of the matters in issue and relied on documentary evidence gathered during the investigations.
60. He testified that on 14th December, 2004, the Kenya Police seized a total of 1.1415 tonnes of cocaine valued at approximately Ksh.6.392 billion in Nairobi and Malindi. He stated that 304 kilograms of cocaine with a street value of Ksh.1.702 billion were seized at Godown No. 20 along Old North Airport Road in Embakasi, Nairobi, concealed in a false bottom of container number MAEU 5650860. He further testified that simultaneously, police officers seized 837.5 kilograms of cocaine valued at Ksh.4.69 billion at Rocky House situated on Plot No. 1883 in Casuarina Area, Malindi, where the drugs were concealed beneath the deck plate of a motor boat.
61. PW3 stated that following the investigations and seizures, several suspects including David Mugo Kiragu, Railton Muthungu, James Nderitu, Ricci Angelo, Estella Duminga Furuli, Tansukhal Jivanal Thanki, George Stanley Wango alias George Njoya Wango, David Alexander Gachago and Central Valley Supplies Co. Ltd were arrested and charged in Criminal Case No. 3165 of 2004 before the Chief Magistrate’s Court at Nairobi. He testified that judgement in the said criminal case was delivered on 28th June, 2006.
62. PW3 further testified that apart from the seizures in Embakasi, Malindi and a separate seizure of 1.295 kilograms from a Tanzanian national, no other cocaine was seized in Kenya in the year 2004. He therefore maintained that it was false for the Defendants to allege that another tonne of cocaine or any quantity of drugs had been seized at Pepe Inland Container Depot. He explained that the Anti-Narcotics Department maintained comprehensive records of all narcotics seizures in Kenya.
63. PW3 testified that investigations also extended to the Netherlands after authorities there informed Kenyan investigators that 295 kilograms of cocaine had been discovered in two containers at the Port of Antwerp in Belgium. The containers had allegedly originated from Mombasa, Kenya. Following a controlled delivery operation in the Netherlands, several Dutch suspects together with one Kenyan, George Kiragu, were arrested in connection with the seizure.
64. He testified that investigations established that the containers in question had originally been imported into Kenya through the Port of Mombasa in January, 2004 and contained assorted second-hand furniture consigned to Central Valley Supplies Limited. PW3 stated that the cargo was subjected to scrutiny by customs authorities and anti-smuggling teams because of identified irregularities and that the containers underwent 100% verification at the Port of Mombasa. According to PW3, the containers were found to contain only assorted household furniture and no narcotic drugs or contraband.
65. PW3 further testified that after examination at the Port of Mombasa, the containers were forwarded under customs seal and police escort to Pepe Inland Container Depot where they remained under customs control. He explained that the importer subsequently entered the goods for home use and that the containers were again examined and verified at Pepe Inland Container Depot by customs officers together with officers from various government agencies, including Anti-Narcotics officers, Public Health officials, Kenya Bureau of Standards officers and the police. PW3 stated that the containers were again found to contain only used furniture and that customs duties and warehouse charges were duly paid before the goods were released.
66. According to PW3, the staff of Pepe Inland Container Depot played no role in the examination or verification of the containers as such functions were performed exclusively by customs and government officials. He emphasized that the allegation by the Defendants that the containers were cleared with drugs at Pepe Inland Container Depot was therefore false and without basis.
67. PW3 further testified that investigations established that after the containers were released from Pepe Inland Container Depot, they were later transported by George Kiragu and his associates back to Mombasa for onward shipment to Antwerp. He stated that Pepe Inland Container Depot did not receive cargo for export and therefore had no further contact with the containers after they were released to the importer.
68. He testified that investigations traced the movement of the containers from Pepe Inland Container Depot to Mombasa through various transporters and established that George Kiragu coordinated the transportation and shipment of the containers. PW3 further testified that investigations linked George Kiragu and several Dutch nationals to activities at Godown No. 20 in Embakasi and Rocky House in Malindi where the narcotics were eventually discovered. According to PW3, evidence gathered during the investigations showed that false bottoms had been created in the containers and that specialized welding equipment had been used in the concealment of the drugs.
69. PW3 also testified that George Kiragu had leased both Rocky House in Malindi and Godown No. 20 in Embakasi together with Dutch associates. He further stated that investigations established that George Kiragu, through Central Valley Supplies Limited, had imported the motor boat from which the cocaine in Malindi was recovered.
70. PW3 testified that investigations by Kenyan and international agencies, including the United Nations Office on Drugs and Crime (UNODC), the United States Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Attorney General’s office and the Government Chemist, co
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