1. The Applicant is before this Court vide a Notice of Motion application dated 13th March, 2024 wherein the Applicant is seeking the following Orders:
1) THAT the Honourable court be pleased to issue: -
a. AN ORDER OF MANDAMUS compelling the Media Council of Kenya to enforce the decision of The Media Complaint Commission dated 22nd April 2022 issued in Complaint No. MCC 1 of 2022: - Victor Odhiambo Ayieko & Another vs. Nation Media Group Limited & Others.
2) THAT the costs of this application be provided for.
2. It is the Applicants’ case that the Media Complaints Commission in Complaint No. MCC 1 of 2022 Victor Odhiambo Ayieko & Another vs. Nation Media Group & Others delivered its judgment on 22nd April 2022 and made the following orders against the respondents in that complaint: -
i) That pursuant to Section 38 (1) (a) of the Media Council Act 2013 the 2nd interested party is directed to publish/broadcast an apology and correction to the Exparte applicants in a news bulletin of similar prominence as the impugned broadcast. Such an apology will emphasis that the Respondent compensation award, though fully paid was still awaiting further process as per the Laws of Succession.
ii) That pursuant to Section 38 (1) (f) of the Media Council Act, 2013 the Media Complaints Commission orders and directs the 1st interested party to pay a fine of Kshs. 100,000/ for each of the four breaches of the Code of Conduct. This fine shall be a debt due to the Media Council of Kenya and recoverable as such.
iii) The 1st interested party to pay a fine of Kshs. 100,000/= with respect of each of the following breaches: -
• Regulation 2 on Accuracy and Fairness
• Regulation 6 on Right to Reply
• Regulation 13 on Recording Interviews and Telephone Communication.
3. Aggrieved by the said decision, the interested parties lodged an appeal by way of judicial review in Nairobi Judicial review No. E053 of 2022 Nation Media Group & 2 others vs. The Media Complaints Commission & Victor Ayieko & Another. In a judgement dated 13th October 2023, the court dismissed the said application.
4. According to the Applicant’s, the interested parties conduct is a willful attempt to defeat justice and which amounts to a blatant abuse of the Commission’s order and the respondent has failed in its statutory duty to enforce the said decision of the commission against the interested parties.
5. It is their case that they continue to suffer reputational loss pursuant to the continued refusal by the respondents to comply with the aforesaid decisions.
6. They refer to the Halsbury’s Law of England, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89 which states: -
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
7. It is also their submission that the the law on costs was aptly stated in the case of Joseph Oduor Anode v Kenya Red Cross Society [2012] eKLR where Odunga J as he then was, observed that;
“…..in matters of costs, the general rule as adumbrated in the aforesaid statute (the Civil Procedure Act) is that costs follow the event unless the Court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so...”
8. It is their case that the principle on costs was again purposively defined by the High Court in the case of Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR. The superior court held that:
“costs follow the event” has been defined purposively as meant to compensate the successful party for the trouble taken in prosecuting or defending the case”
9. According to them they have demonstrated that they have the requisite locus standi to institute these proceedings and that these proceeding are not an abuse of court process.
10. It is contended that the interested parties have failed to comply with the orders of the commission despite them having written several letters, demands and equally forwarded the court orders judgments delivered both by the Commission and this court to the interested parties and the respondent to enable them comply in vain.
Interested Parties case;
11. They argue that the Applicants lodged a complaint against the Interested Parties at the Media Complaints raising allegations relating to breaches of the Code of Conduct for the Practice of Journalism in Kenya.
12. A decision was rendered on 19th April, 2022 with respect to the said complaint and the following directions being given;
a) Pursuant to section 38(1) (a) of the Media Council Act, Cap. 411B, Laws of Kenya, the 2nd Interested Party was directed to publish or broadcast an apology and correction to the Exparte applicants in a news bulleting of similar prominence to the impugned broadcast titled, “Advocates of Pain” published on 28 December 2021 and 11January 2022. The apology is to emphasize that the compensation award to the Estate of Julius Karuti Mwenda was still awaiting further processes as per the laws of succession;
b) Pursuant to section 38(1)(f) of the Media Council Act the 1st Interested Party was directed to pay a fine to the Respondent of KES 100,000 for each of the four (4) breaches of the code of conduct as determined by the MCC. The said fine shall be a debt due to the Media Council of Kenya (MCK) and recoverable as such;
c) The 1st Interested Party was directed to pay a fine of KES 100,000 with respect to breach of Regulation 2, 6, 13 and 21 of me Code of Conduct for the Practice of Journalism in Kenya; and
d) The cumulative fine of KES 400,000 shall be a debt due to the Respondent, recovered as such.
13. It is contended that aggrieved by the said decision, the interested parties lodged and filed a matter before this court Nairobi Judicial review No. E053 of 2022.Nation Media Group & 2 others vs. The Media Complaints Commission & Victor Ayieko & Another.
14. On 13th October, 2023 this court dismissed its application which sought to quash the MCC orders dated 19th April 2022 thereby upholding the decision of the MCC.
15. The fine of KES 400,000 was imposed against the 2nd Interested Party and the fine was payable to the Respondent, and recoverable as a debt due to the Respondent and the Respondent has not failed in its statutory duty to enforce the decision of the MCC.
16. According to them, by dint of Section 38(1)(f) of the Media Council Act Cap. 411B the Respondent is at liberty to file debt recovery proceedings against the Interested Parties and the Applicants cannot purport to arrogate themselves the right to enforce payment imposed against the 2nd Interested Party through the present judicial review proceedings.
17. It is further argued that given the foregoing, the Applicants lack locus to seek enforcement of payment of the fine and that the enforcement is a preserve and lawful right of the Respondent. Further that they are using the present judicial review proceedings to embarrass the Interested Parties and are attempting to usurp the lawful right of the Respondent to enforce the MCC decision.
18. The interested parties also contend that the final orders of the MCC and the High Court did not specify a timeline within which the 2nd Interested party was to undertake publication of the apology.
19. It is their case that they have prepared a draft apology that they will publish/broadcast once it has obtained an appropriate slot for the news bulletin. The draft apology has been designed to meet the requirements of the MCC’s Decision, ensuring that it adheres to the standard of prominence mandated in the formal orders.
20. They argue that the Applicants have not met the threshold to warrant the issuance of the orders of mandamus and their allegation of reputational damage is subject to the Magistrate proceedings in MCCC No. 09 of 2022, Victor Odhiambo Ayieko & Charles Mwangi Kangethe t/a Ayieko Kangethe Advocates vs Nation Media Group Limited and Brian Obuya where the Applicants in the instant suit have sued the 1st and 3rd Interested Parties for defamation.
21. The Interested Parties urge this court to be guided by Law Society of Kenya v Commissioner of Lands & 2 others [2001] eKLR, where the High Court noted as follows regarding the definition of locus standi:
“The first point to be decided is whether the plaintiff has the necessary locus-standi to file and prosecute the suit. Locus-standi signified a right to be heard. A person must have a sufficiency of interest to sustain his standing to sue in a Court of law. That was the holding in BV Narayana Reddy –vs- State of Kamataka Air (1985) Kan 99, 106 (The Constitution of India, ARD 226). I adopt the same as a correct proposition of the law and I so hold.”
22. On Locus standi they also place reliance on Alfred Njau, Aluchio Liboi, Joseph Muya Mukabi, Peter Inyangala, Akhonya Analo and Jacob Gichigo v City Council of Nairobi (Civil Appeal 74 of 1982) [1983] KECA 56 (KLR) (Civ) (28 June 1983) Judgment), and Julian Adoyo Ongunga & Jared Odhiambo Abano v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) (Civil Appeal 119 of 2015) [2016] KEHC 4186 (KLR) (20 July 2016) (Judgment.
23. It is submitted that the court in Hassan Nyanje Charo v Khatib Mwashetani, Independent Electoral and Boundaries Commission, Juma Musa & Gideon Mwangangi Wambua (Civil Application 14 of 2014) [2014] KESC 41 (KLR) (Civ) (13 May 2014) (Ruling), the Supreme Court held as follows regarding abuse of the court process:
“[29] The Black’s Law Dictionary defines ‘abuse of process’ at page 11 as:
“The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope”
It includes the deliberate use of the court and court process to settle vendetta, to intimidate, to inflict fear and involves the bringing of matters to Court that have no justiciable cause of action…
[31] Courts are financed by the public fund hence; they have to be used and managed so as to enhance good governance. Public policy demands that the rule of law should be enhanced in the invocation of courts’ jurisdiction. Litigants should adhere to the procedures established in regard to invocation of courts’ jurisdictions. On the other hand, courts have the duty to protect citizens’ constitutional rights; provide procedural due processes; give timely determination of matters; and preserve the rule of law. Courts are a cornerstone of our society and litigants’ legitimate expectation of timely and expeditious determination of their matters is justified.
24. It is their submission that an order of mandamus is an order issued to deserving applicants and is a remedy of last resort, sought when an aggrieved party has already taken steps to enforce a legal right. There must also be a failure of compliance on the part of the public body, that must be demonstrated by the person seeking an order of mandamus.
25. The Interested Parties implore this court to be guided by the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, N S, J W, R N, G W, A W, C W, B W, S N & J B (Civil Appeal 266 of 1996) [1997] KECA 58 (KLR) (Civ) (21 March 1997) (Judgment), the Court of Appeal noted as follows regarding the scope of an order of mandamus:
“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again, we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
At paragraph 90 headed “the mandate” it is stated: “The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
Analysis and Determination:
26. Upon perusing the pleadings and the rival submissions alongside the authorities cited, this court finds that the issue for determination is whether or not the Applicants are entitled to the orders sought.
27. It is not in dispute that the Media Complaints Commission in Complaint No. MCC 1 of 2022 Victor Odhiambo Ayieko & Another vs. Nation Media Group & Others delivered its judgment 22nd April 2022 making the following orders that form the subject matter of this Application.
28. The said orders did not specify a timeline within which the 2nd Interested Party was to undertake publication of the apology.
29. It is over fifteen (15) months since the High Court Judicial Review Application No. E 053 of 2022 was dismissed by this court. Several letters and demands to the Interested Parties and the Respondent have not been acted upon.
30. Section 4 (1) of the Fair Administrative Action Act stipulates that “every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair”.
31. Section 7 of the Fair Administrative Action Act stipulates that,
“(i)the administrative action or decision is not rationally connected to-
(i) The purpose for which it was taken;
(ii) the purpose of the empowering provision;
(iii) the information before the administrator; or
(iv) the reasons given for it by the administrator;
(j) there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;
(k) the administrative action or decision is unreasonable;
(l) the administrative action or decision is not proportionate to the interests or rights affected;
(m) the administrative action or decision violates the legitimate expectations of the person to whom it relates.”
32. This court is of the opinion that there has been an inordinate and an unreasonable delay on the part of the interested party which amounts to a failure to discharge its duty as imposed in the judgment.
33. The nature of the order that the Interested Party was directed to comply with is a fairly straight forward task that should not take it over a year to implement.
34. In a gesture towards complying with the judgment ,The Interested Parties have prepared a draft apology that they will be publish/ broadcast once it has obtained an appropriate slot for the news bulletin. The draft apology has been designed to meet the requirements of the MCC Decision, ensuring that it adheres to the standard of prominence mandated in the formal orders.
35. The unreasonable delay offends the Applicants legitimate expectation that it would enjoy the fruits of the judgment. This court is of the view that this amounts to a refusal to comply with the court order.
36. In so holding, I am guided by De Smith, Woolf & Jowell in “Judicial Review of Administrative Action” 6th Edition Sweet & Maxwell at page 609:
“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.”
37. Section 11 (2) of The Fair Administrative Action Act stipulates that in proceedings for judicial review relating to failure to take an administrative action, the court may grant any order that is just and equitable, including an order- (a) directing the taking of the decision; (b) declaring the rights of the parties in relation to the taking of the decision; (c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties.
38. This section gives this court the power to intervene and in the instant case in line in directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties.
39. The Applicant has made out a case for the grant of the order sought in prayer 1 to that extent.
40. I shall now look at the second part of prayer 1 of the Application. It was ordered that pursuant to section 38(1)(f) of the Media Council Act the 1st Interested Party was directed to pay a fine to the Respondent KES 100,000 for each of the four (4) breaches of the code of conduct as determined by the MCC. The said fine shall be a debt due to the Media Council of Kenya (MCK) and recoverable as such;
a) The 1st Interested Party was directed to pay a fine of KES 100,000 with respect to breach of Regulation 2, 6, 13 and 21 of the Code of Conduct for the Practice of Journalism in Kenya; and
b) The cumulative fine of KES 400,000 shall be a debt due to the Respondent, recovered as such.
41. The 1st Interested Party was directed to pay a fine to the Respondent of KES 100,000 for each of the four (4) breaches of the code of conduct as determined by the MCC.
42. In the case of Hon. Martin Nyaga Wambora vs. Speaker of County Assembly of Embu and 5 Others HCCP No. 3 of 2014, the court observed as follows:
“It is clear from the above definition that whether a matter before a Court is justiciable or not depends on the facts and circumstances of each particular case but the Court must first satisfy itself that it has jurisdiction to entertain the matter before it can resolve the issue of justifiability.’
43. In Coalition for Reform and Democracy (CORD) & 2 Others -v- Republic of Kenya; Another HCCP 628 of 2014 [2015] eKLR, the court cited the case of Patrick Ouma Onyango; 12 Others –v- AG; 2 Others Misc. Appl No. 677 of 2005 the court endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. As follows:
“In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a real and substantial controversy is determined under the doctrine of standing; by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantiality of the controversy is also in part a feature of the controversy itself-an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of ripeness; which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of mootness; which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the; political question; doctrine, barring decision of certain disputes best suited to resolution by other governmental actors.”
44. The Applicant has no claim emanating from the orders of the MCC or The High Court in its favour. It is a stranger to the orders that it seeks to enforce. There is no present or real controversy or cause of action available to the Applicant that is capable of enforcement through an order of Mandamus to compel the Interested Party to pay the Respondent the decretal amount.
45. The Applicant has not tendered any evidence to show that the Respondent authorised it to pursue its claim and the Applicant lacks locus standi and I so hold.
Disposition
The Applicant is partly successful in its application to the extent of the apology.
The Application fails on the limb of the prayer where they seek to compel the payment of the decretal sum that directed the 1st Interested Party to pay a fine of Kshs. 100,000/ for each of the four breaches of the Code of Conduct.
Order
1) The 2nd interested party is directed to publish/broadcast an apology and correction to the Ex parte applicants as directed by the Media Complaints Commission judgment dated 22nd April 2022 in Complaint No. MCC 1 of 2022 Victor Odhiambo Ayieko & Another vs. Nation Media Group & Others in a news bulletin of similar prominence as the impugned broadcast within thirty days.
2) No orders as to costs.