RAPHAEL KALAMA MWATIKA VS PAUL MUNYILI NZIOKA AND VERONICAH NDINDA WAMBUA

1. From  the   plaint  filed  on 3/5/2015,  the  plaintiffs/respondents   alleged    that  the  defendant/appellant  sent    text  messages to  the 1st  Plaintiff   saying   “ you  will  be killed  for  making  love   with someone’s  wife.” 
2. Each of  the  plaintiffs   was  married  to  their   respective    spouses  and the  1st  plaintiff  was  a  “Catholic  Catechist.” It was   pleaded that the purport of the text messages   was that   the plaintiffs were immoral characters who were not faithful in their messages.
3. It  was  also  pleaded  that  at the  time  the  defendant  appeared   before   elders  and apologized  and  promised  to  pay  Kshs. 100,000 compensations and even paid   Ksh.  30,000 but failed    to pay   the balance   as agreed.
4. The   plaintiffs   sought  judgment  against  the defendant  for;
1) Damages   for  defamation
2) Costs  of  the suit
5. The plaint was supported   by the joint statement   of the plaintiffs -  where it was stated that the defendant had sent a message using the phone no. 0736466597 to the 2nd plaintiff’s husband’s one Benjamin Wampum no. 0731612705.  That the message was in Kikamba -  saying “Paul Musyilu, the 1st plaintiff while in Kathonzweni   rents the lodging   and uses your wife body.”
-  That another message   was sent by the    defendant to the phone 0736722596 of the 1st plaintiff through 0736466597 of the defendant saying “tell your people you will be killed because of making love to Wambua’s wife.”
- That the   defendant appeared before   elders on 11/10/2014, apologized and agreed to   compensate the plaintiffs with Kshs.  100,000 paid    Kshs.  30,000 refused to pay rest. 
- That the two now sought damages   for defamation.
6. The matter   was first     heard exparte -  but   eventually the judgement was set aside    and defendant   granted   leave to file defence.
7. A  statement  of  defence  was filed  on  6/11/2019  in  which  the  defendant   denied  all the allegations  on the plaint  and put  the plaintiffs  to  strict   proof  thereof,  denied   appearing    before  elders  to  apologize /making  any promise  to  pay  Kshs. 100,000  /paid  Kshs. 30,000. He sought that the suit   be dismissed with costs. 
8. The defendant denied    specifically sending    text message as pleaded. That     the plaintiffs claim was fraudulent   and set out the particulars   of fraud. 
9. The   defence   was accompanied  by  defendant’s statement   where  he  stated    that  the 1st   plaintiff held  a  grudge  against  him   for a  disagreement  at work   where    the  1st   plaintiff   had sought   his  help   to  cover  up   an issue  where  the 1st  plaintiff  had  assaulted a  colleague at  work.
10. He also    stated    that some writing   had been found on the floor of the old church building   in    the Kikamba language    stating   that Mutinda and Mutindi stay together eating the big fruit   - and that the 1st plaintiff   suspected he was the   author - but other church   officials confirmed that those had been written by children. 
11. That   the plaintiffs reported to the police that he had threatened    them with a panga, that he had sent threating messages to their phones -  that he was arrested, spent   a night in the calls, paid cash bail of Ksh. 10,000 the following day – that   investigations revealed    that the reports were false, his money was   refunded and plaintiffs warned -  that he was   never   charged in court of law for any offence. 
-  That    he learnt    about   this suit when    auctioneers    went to his home.
12. The matter was heard   orally where each party adopted   their   witness statement, and were cross-examined: - 
13. Paul  Munywilu  Nzioka testified  that  the defendant  sent  him a message  saying   that    he   always took  the 2nd   plaintiff  to  lodgings.  That    that made him lose his job.  He said    he reported to the police and investigations were conducted.  He   marked   the forensic  report  as  PMFI -1,  he   produced an  agreement  he  said  the  defendant signed  to pay  him   Kshs.  100,000 - paid   Kshs.  30,000, refused to pay Kshs.  70,000. He produced a demand    letter and the response by the defendant - PEX 2, 3 & 4 respectively.  He   told the court that he lost his job in the church ministry as a catechist because the defendant had    spoken his name. 
14. On cross-examination   he told the court that   he was defrocked   by a priest -  on allegation   that   had been made by one Agnes (now deceased) that he had raped her -  that that was in   2013, and that she had been arrested, and the claim found to be untrue. That  by  then  the  defendant  was   chairman  of  their church  and  his  phone  no.  was 0736466547.  He   stated that he was defrocked   in 2014 after   the defendant   sent the alleged messages. 
15. PW2 Veronica Ndinda    told the court that she sued    the defendant because he called her husband and told him that she was having    sex with the 1st plaintiff   -  yet   it was the defendant who wanted    to have sex with her.  That the defendant assaulted her sexually and she reported to her husband and that is when the defendant sent her husband a message alleging that she was having sex with the 1st plaintiff in a lodging. She   testified   that the police   investigated the matter and found that the messages were sent from the phone of the defendant and he was arrested -  she testified   that they agreed    before the elders on a settlement because the defamation    made   her   fall out   with her husband and be referred    to a   prostitute at her place of   work.
16. On   cross-examination she told the court that she did not report the sexual assault   to the police, that the defendant called her husband and sent a text -  that the text did not mention her name; but   that her husband had only one wife, herself -  that   defendant was never   charged    in court, and that her hotel   business was destroyed due to   the defamation.
17. On re-exam    she said that   the defendant   was granted police     bond only, that they sat   with the clan and reconciled. 
18. At   the end, counsel Mr. Tamata sought     summons for DCIO to produce PMFI  1; the report by DCI forensics.  Parties were given a hearing date and last adjournment. 
19. When the matter came next for hearing the witness from DCIO was not present and plaintiff closed    their case. 
20. The defendant testified -  that the plaintiff was catechist in the church, the   defendant   was the chairman of the church, one Agnes was vice chairperson   of the burial committee.  The plaintiff   was removed   from being    a catechist following allegations of assault from Agnes.  That the alleged   texts and   phone number used were not made by him and the number was not his. 
21. He stated on cross-examination that the plaintiffs   reported to the police that he had threatened to kill them.  He said that they reconciled    and he agreed to pay Kshs.  100,000 he said the payment was for costs incurred   when plaintiff reported to the police.  He said he was not ready   to pay because the allegations made by the plaintiffs were false.  He said he never   signed   the agreement. That he had made agreement with one Malaki   who had   sought   forgiveness for giving   false testimony   against    him - the defendant.
22. DW2 & DW3 testified to this   issue between the defendant and one Malaki. Each  said    they  did not  participate  in the proceedings  between    the 1st  plaintiff   and the  defendant  - DW2   said  he  knew   that the  defendant    called  1st  plaintiff on  phone   and told  him some  shameful  thing,  and  threatened   hi.  He  said  he  knew  about   the  allegations  made  about  the plaintiffs  by  the defendant  and  the agreement  for  compensation.  He said    his view was that defendant     should pay Kshs.  70,000 balance.
23. He said   he was present when the agreement   for Kshs.  100,000 were made but   that Maluki   withdrew his testimony   on the defamation issue saying   it was false.
24. The defence closed   its case. 
25. Parties    filed submissions.
26. The trial   court in the judgment   delivered on   7/10/2020 found that the plaintiffs’ claim was proved -  and ordered that     the defendant   pay each of the plaintiffs, Ksh. 70,000  plus  costs  and   interest. 
27. Aggrieved,  the   defendant   filed  this  appeal  on the following  grounds;
1) That the learned trial magistrate erred in fact and in law by failing to give concise statement of the case, points of determination, decision thereon and reasons for his judgment.
2)  That the learned   trial magistrate erred in law and in fact in failing to consider appellant’s submissions and thereby ignoring relevant    guiding   facts to enable   him reach a fair and reasoned   determination.
3) That the   learned trial magistrate erred in fact and in law and contradicted himself in his judgment when he   stated that it was not clear    which grievance   made the plaintiff to come to court however he proceeded to hold that respondents had   qualified their reputation had been attacked while there was no sufficient evidence had been tendered in court. 
4) That the learned   trial magistrate   erred in law and in facts by applying    wrong and inapplicable   principal   of law in defamatory    case and which did not form any basis   to warrant his determination on general damages for defamatory case. 
5) That the trial   magistrate   erred in law and fact by failing to appreciate the fact that the respondents had not proved their case on a balance of probabilities as required    under the law.
28. The appellant seeks that:
i. The appeal be allowed and judgment against the appellant be set aside. 
ii. The orders   in favor   of respondents be reviewed and/or revised accordingly and judgment   be entered in favor of the respondents be dismissed. 
iii. Cost of the   appeal and costs of the lower court be granted to the appellant
iv. Any other order this Honorable    court may deem fit to grant.
29. Parties    canvassed the appeal   by way of   written submissions. 
I have considered    the submissions and the issue   for determination is whether the plaintiffs established their   claim for defamation.
30. I  say this guided  by the authorities that on  a  1st    appeal   from the trial  court  to  the High Court  -  the court is required  to conduct  the appeal   in the way of a retrial   - reconsider ,  re-evaluate  the    evidence  and draw  its    conclusion  keeping  in mind  that it never  saw/ heard  the  witness.  See Gitobu Imanyara & 2 Others   Vs AG [2016] eKLR.
31. The appellant   cited Phineas Nyagah Vs Gitobu Imanyara Civil Suit   No. 697 /2009 [2013] eKLR with respect to what amounts to malice in a defamation case
32. The appellant   argued his appeal on the facts -  submitting that the evidence as placed before court did not    prove the claim of defamation. 
33. Fort the respondent it was argued that there was evidence from the CID that the defendant   was he author   of the phone   number that sent the defamatory messages, that there was   evidence of reconciliation at Kshs.   100,000  and payment  of  Kshs. 30,000 , that  the accord  by the  trial    court was on the basis  of  the  admission  by  the defendant. 
34. I am minded   to agree with the court  in  Phinehas Nyagah v Gitobu Imanyara [2013] eKLR
15. However, before determining the above issues it is important to set out the various principles of the law of defamation. Under article 32(1) of the Constitution every person has the right to freedom of conscience, religion, thought, belief and opinion and provides that the freedom to express one’s opinion is a fundamental freedom. Article 33(1) (a) provides that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, clause (3) provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. This, in my view, is the constitutional fulcrum of the law of defamation. Accordingly, the law of defamation is not just anchored on a statutory enactment but has been given a constitutional underpinning as well.  In a tort for defamation the Court is therefore under a duty to balance the public interest with respect to information concerning the manner in which its affairs are being administered with the right to protect the dignity and reputation of individuals.
16.  Defamation is a tort and is defined as the publication of a statement which, tends to lower a person in the estimation of right thinking members of the society generally or which tend to make him be shunned or avoided. The defamatory statement is one which has tendency to injure the reputation of the person to whom it refers by lowering him in the estimation of the right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem and typical examples are an attack upon the moral character of the plaintiff attributing to him any form of disgraceful conduct such as crime, dishonesty, cruelty and so on. Publication is the communication of the words to at least one other person other than the person defamed. Publication to the plaintiff alone is not enough because defamation is an injury to one’s reputation and reputation is what other people think of a man and not his own opinion of himself. An action for defamation is essentially an action to compensate a person for the harm done to his reputation. Defamation is not about publication of falsehoods against a person; it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower him in the estimation of right thinking members of society generally. An injurious falsehood may not necessarily be an attack on the plaintiff’s reputation. The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. See J P Machira Vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997.
17. …
18. The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. Whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable man would not have understood them in the former sense. However, in libel, the words cannot be protected as mere abuse since it is presumed that the defendant had time for reflection before he wrote them. Secondly, the words must refer to the plaintiff. Thirdly, the words must be malicious. Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts.  That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts. The failure to inquire into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement was false or did not care whether it be true or false will be evidence of malice. See Godwin Wachira vs. Okoth [1977] KLR 24; J P Machira vs. Wangethi Mwangi (supra).
35. The 1st thing   the  plaintiff  need  to prove  was that  the defendant   published    the words  alleged,   and that  those words  were defamatory. 
36. Parties are bound  by  their  pleadings  - the  Plaintiff  simply  pleaded    that  a  text  was   sent  to the 1st  plaintiff  that  “you  will be  killed   for  making  love  with someone’s    wife.”
37. According to the pleadings these words were sent to the 1st plaintiff’s phone himself.
38. There  is    nothing   in those  words  to  name  the 2nd  Plaintiff– or to  say that  the 1st  plaintiff was  having  sex  with  the    2nd   plaintiff. 
39. The    source   of the test is   not  pleaded -     from which  phone   number.
40. There   is  nothing in the  plaint   to  show   that  the  text  messages  were  sent  to  the husband   of  the 2nd  plaintiff,  neither  is  it pleaded   that  the  defendant  called    the  husband     of  the    2nd  defendant. 
41. There is no evidence that the words were published the phone of any other party from the respondent’s phone.
42. Hence no evidence of publication to amount to defamation.
43. The particulars of damages suffered   are not pleaded in the plaint. 
44. The  plaintiffs  filed  witness  statements  that  have   details   of  phone  numbers   and extra messages  -  even  to the  effect  that  certain  words   were  in  Kikamba   language   yet none of   these  things  were    pleaded. 
45. That  besides   - the plaintiffs  did not  produce  any   evidence  to prove  that  any  texts  were sent  from the  defendant’s  phone  to the 1st   plaintiff’s phone   or  any  other   phone -  the  2nd defendant,  husband  was not  called  to  testify  that  he  actually  received    the  alleged text  or what effect they  had  in him. 
46. There was   no evidence that the defendant had published   the alleged   texts to anyone -  any 3rd   party to warrant   the plaintiff’s    claim that     because of those tests their reputations, jobs, business were injured/ruined.
47. It was alleged    that the defendant admitted to the defamation and tried agreed to pay compensation.
48. To support   this averment    the plaintiffs produced     document   headed “Reconciliation between   Paul Munywilu Nzioka & Raphael Kalama Mwatika.”
49. A casual    glance   at the document clearly shows that the name “and Veronicah   Ndinda Wambua” were added   later.
50. Be that     as it may the document states - “the above elders     after   listening    the above   parties   about” 
1) SMS -  threat   of murder 
2) Cost
3) Defamation
They    have conculed (sic) that Raphael Kalama   Mwatika to pay Ksh.  100,000   to cater   for cost only and leave (1) and  (3)…”
51. Evidently the document states clearly this was about costs not about threats or defamation. It is also clear that it is the elders who have concluded that the money be paid to cater for costs. It does not say costs with relation to what in particular.
52. In addition other than the heading, nowhere on the page does the  name  or  signature  of the defendant  appear  as being   present  at  the proceedings.
53. The document indicates a direction that the money be paid in 3 installments of  Ksh. 30,000, 30,000, 40,000 in October, November, December 2015.
54. On 5/11/2014 there is an entry that the defendant has paid Ksh 30,000 leaving a balance of Ksh70,000, the 2nd instalment to be paid on 10/12/2014. The names of the plaintiffs   and their signatures appear but the name and signature of the defendant/respondent do not appear.
55. I noted that the learned trail magistrate in his judgment awarded each of the plaintiff’s Ksh 70,000 for defamation apparently based on the alleged agreement. I have already stated that there was no agreement. And the elders passed a conclusion that the sum of Ksh 100, 000 be paid as costs. It does not say they said pay to each of the two plaintiffs, hence even if one was to go by the elders’ conclusion, the trial court was in error to award the sum of Ksh 100,000 simply as costs.
56. Of great   significant however is  what  the  money  is  for  - it  is  not  for  the    alleged   “SMS-    threat   of  murder”,  it  is   not for  “defamation”  -  it  is  for  cost”.  This cost is not    defined    what  is  for   and  the  reason  for  its  payment. 
57. The  elders  did  not  deal  with  any   issue  related to  SMS’s  or  defamation and   it is  therefore not  correct    for the plaintiffs  to  submit  that  the judgment  was  founded    on the admission of  the defendant that  he  had  defamed  them  and  agreed     to  compensate  them for  the  defamation.  There was a reconciliation, the elders decreed a payment for costs and declined to deal with any issue related to the issues before this court.
58. Clearly   - the document     the plaintiff produced   did not amount    to admission on the part of the defendant that he   had defamed them, neither is it an agreement to pay compensation for defamation. 
59. From   the foregoing   it is my considered    view that - the plaintiff’s   did not prove   that (i) the   defendant   sent   any text   to their phone or any one’s phone (ii) that    the texts     were   the ones pleaded (iii) that the texts   were defamatory (iv) that   they suffered   any loss to their reputation.
60. The 1st   plaintiff    conceded that prior to this case he had suffered   a blow to his   reputation   when Agnes (now deceased) accused   him of sexual   assault -  he was defrocked as a catechist.
61. It is allegations  such as these, of sexual impropriety,   flying left right and center    among people   considered   to be church leadership -  with   suspicious so high in the air even   writings allegedly made by children -  which    appear    innocent are given sexual undertones , and without proof,  attributed to one of the church leaders, that bring calumny to the church space. It is unfortunate that persons given the reigns of    spiritual leadership are embroiled in these   matters to the extent that the matters cannot be discussed at the church level but must be taken to the elders in the village. So that it is they themselves who end up creating awareness that such allegations are there. I doubt that  they have  stopped to think about the damage they may have caused to other ‘waumini’ who include children, their own and those who attend the church  who must have heard these stories since when a matter goes to the village  court it gets to the public domain, long before it gets here. It is truly sad.
62. Be that as it may, the plaintiffs’ claim even     to the police -   did not have a leg to stand on   to warrant any charges     against    the defendant. 
63. In the circumstances I am of the view that the appeal is merited. There is no proof of defamation, no proof of any admission or agreement to pay damages by the appellant.
64. The   appeal be and is hereby allowed. The judgment   of the subordinate   court be and is hereby set aside   in its entirety and the plaintiffs’ suit dismissed with costs. 
65. The appellant will have costs of this appeal.

Dated signed and delivered via CTS this 12th August, 2024

Mumbua T. Matheka

Judge