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JudgmentVICTOR OMONDI VS PLATINUM CREDIT ASSURANCE11 min read

VICTOR OMONDI VS PLATINUM CREDIT ASSURANCE

High Court at Milimani High Court · · Wendy Micheni

(Being a partial Appeal against the Judgment and Orders of the Chief Magistrates Court at Nairobi delivered by the Honourable D.M. Kivuti (Mr), Senior Resident Magistrate, on 18th of October, 2019 in CMCC No. 6490 of 2016)

JUDGMENT

Background

  1. The appellant instituted his suit at the trial court by a plaint dated 16th September, 2016 for inter alia damages for libel, loss of business, exemplary and aggravated damages. The alleged libelous statements were published by the respondent, through a letter of instruction to Purple Royal Auctioneers dated 30.08.2016 for the repossession of the appellant’s motor vehicle reg. no. KBV 453L, used as security in a chattels loan mortgage, for an alleged default.
  2. Consequently, the said Auctioneers acting on the said Respondent’s instructions and without notice ambushed the Appellant and on 2nd September, 2019, in public, before the Appellant’s driver and business associates seized the vehicle and towed it away leaving the Appellant exposed and embarrassed. The appellant, aggrieved by the circumstances, marched straight to the Respondent offices shortly thereafter to demand explanation only for the Respondent to confirm that the Appellant was not in default, and issued a further instruction letter for the release of the vehicle.
  3. The Respondent, in its defence, argued that pursuant to the terms of the loan facility, the appellant was to repay the loan in 12 months at kshs.26,000/- at an interest rate of 7.5%. The appellant issued 12-post dated cheques repayable on every 21st of every month. As alleged several cheques were dishonored leading to arrears as at August, 2016, leading to the repossession of the security on 2nd September, 2016. The appellant rushed to clear the arrears and instructions to release the security were issued on even date.

Trial and Evidence

  1. The appellant testified himself as PW1; maintaining that he was never a defaulter and never issued a bounced cheque, thus his vehicle was towed erroneously, howbeit it was still released the same day. Thus, he sought an apology and damages.
  2. The respondent equally called a single witness, DW1; Richard Dickson, the Respondent’s assistant legal manager, who reiterated that the appellant issued several bouncing cheques prompting their recovery. In cross-examination, he acknowledged that the respondent provided no evidence to ascertain that the appellant was a defaulter.
  3. The trial court delivered its judgment dated 18th October, 2019 where the learned trial magistrate held as follows;

“There exists a borrower/lender relationship as between the parties. The defendant misconstrued the status of the loan account prompting repossession of the motor vehicle pledged. The question is that could the instructions issued to the auctioneer to repossess the vehicle if established erroneous, defamation?

These were matter of private business relationship between the parties, the letter subject of which defamation is claimed, extended to Purple Royal Auctioneer. Could that constitute damage of character to the society at large?

I must say to infer defamation in matter constituting exercise of commercial right between Financier and borrower would be to far fetch this jurisprudence axiled (sic) this this disclosure. For defamation to suffice, there must be in existence a public aspect of having the words complained of being disseminated to other people who then would look down upon the offended party.

Having observed, that the plaintiff would not succeed under the limb of defamation. However, from the evidence postulated there was an apparent negligence of account taking by the defendant, the process of repossession was not legitimate. Consequently, the plaintiff is entitled to common law damages. Prayer B of the plaint dated 16th September, 2016 would succeed. I shall award the plaintiff kshs.100,000 as general damages for the inconveniences occasioned by the defendant’s conduct, costs and interest to the plaintiff.”

  1. The appellant being aggrieved with the judgment instituted this appeal by way of a Memorandum of Appeal on grounds;
  2. The Honourable Court erred in aw and in fact in dismissing the plaintiff’s claim for defamation and indeed, misdirected itself in holding that defamation had not been established despite clear evidence and facts to the contrary.
  3. The Honourable Court erred in law and fact and misconstrued the law on defamation by dismissing the suit on the basis that publication of the defamatory material to Purple Royal Auctioneers would not constitute damage of character to the society at large hence concluding that defamation had not been established.
  4. The Honourable Court erred in law in its finding that for defamation to suffice there must be in existence a public aspect of having words complained of being disseminated to other people who then would look down upon the offended party contrary to well established law.
  5. The Honourable court erred in law and misdirected itself in failing to find that defamation had been established despite finding that erroneous and thus false material had indeed been published to Purple Royal Auctioneers, disclosed Third Party.
  6. The Honourable Court erred in law and fact in failing to appreciate the case before it in its totality and in particular failing to appreciate that the plaintiff’s evidence asserting publication to third parties had not been controverted.
  7. The Honourable Court failed to appreciate and consider at all the submissions, arguments and the authorities filed by the appellant in toto which failure has occasioned a miscarriage of justice.
  8. The court erred in law and fact in awarding nominal damages of kshs.100,000/- on account of negligence despite gravity of injury occasioned upon the appellant.
  9. All in all, the tribunal erred in law and in fact thereby occasioning a miscarriage of justice.

Written submissions

  1. The appellant in his lengthy submissions dated 25th March, 2024, maintained that the publication was malicious by being based on falsities. Further, no plausible explanation was proffered, thus an award general damages as a matter of course for injury to reputation, should suffice. Several authorities were cited as guidance including GIDEON MOSE ONCHWATI V KENYA OIL CO. LTD & ANOTHER CIVIL SUIT NO. 140 OF 2008, MARY KEMUNTO MARIERA V STANDARD GROUP LIMITED [2019] eKLR, and EQUITY BANK LIMITED & ANOTHER V ROBERT CHESANG CIVIL APPEAL NO. 571 OF 2012.
  2. In its rebuttal submissions dated 5th April, 2024, it was argued that, the letter of instruction does not constitute as defamation, as the auctioneer does not constitute a third-party, within the meaning of the “public”. Further, the contents of the letter were instructive and had no propensity of lowering the appellant’s reputation which caused the appellant to be rejected, disliked, ridiculed or avoided by people. The respondent relied on the authorities in Musikari Kombo vs Royal Media Services Ltd (2018)eklr, Phinehas Nyagah vs Gitobu Imanyara (2013)eklr, Samuel Ndung’u Mukunya vs Nation Media Group Ltd & another (2015)eklr.

Analysis and Determination

  1. As this is the first appeal, this court is called upon to analyse and re-assess the evidence on record and reach its own conclusions bearing in mind that it neither saw nor heard the witnesses testify (see Selle v Associated Motor Boat Co. [1968] EA 123).
  2. In Kiruga v Kiruga & Another [1988] KLR 348, the Court of Appeal observed that;

An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong.  An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution.

  1. In case of James Njagi Joel v Junius Nyaga Joel [2020]eklr the court stated that;

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 in the society or they must tend to cause the plaintiff to be shunned or avoided by other persons. In other words, the words complained of must be shown to have injured the reputation, character or dignity of the plaintiff. It is trite that abusive words may not be defamatory per se.  The words must be shown to have been construed by the audience as defamatory and not simply abusive. The burden of proving the above is upon the plaintiff to demonstrate that a reasonable man would not have understood the words otherwise than being defamatory.

  1. Further, the foregoing ingredients of defamation were reiterated in the case of John Ward v Standard Limited [2006] eKLR where the court stated as follows: -

"A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling.

The ingredients of defamation are: -

The statement must be defamatory.

The statement must refer to the plaintiff.

The statement must be published by the defendant.

The statement must be false."

  1. Black's Law Dictionary defines defamation as "the act of harming the reputation of another by making a false statement to a third person."  The book Gatley on Libel and Slander authoritatively states that a statement is defamatory of the person of who it is published if it tends to lower him in the estimation of right-thinking members of the society generally or it exposes him to public hatred, contempt or ridicule or it causes him to be shunned or avoided.
  2. In GATLELY ON LIBEL AND SLANDER 6th Edition at page 6 the learned author stated that –

“A defamatory statement must be false and it must also be defamatory to the plaintiff, that it is to say, the statement must contain, whether expressly or by implication, a statement of fact or expression of opinion which would lower the plaintiff in the estimation of a reasonable reader who had knowledge of such other facts not contained in the statement, as the reader must reasonably be expected to possess.”

  1. A plaintiff in a defamation case must prove that the words were spoken or written by the defendant, that those words refer to him/her, that those words are false. That the words are defamatory or libellous and that he/she suffered injury as a result, that is, his/her reputation was injured as a result.
  2. In the instant, the alleged defamatory statements are pursuant to a letter of instruction published to Purple Royal Auctioneers, on or about 30th August, 2016, which presumably, alleges that the Plaintiff is a loan defaulter and/or in arrears and as a consequence, the auctioneer does repossess the motor vehicle registration Number KBV435L; thereto the security. I say presumably, as the actual and express contents and/or wording of the letter is unknown, as the same is neither on record nor was it produced at the trial court. In fact, the appellant relies on the fact that the reality of a letter of instruction is not in dispute, following the respondent’s acknowledgment of the same at paragraph 6 of the Statement of Defence where the Defendant admits that they indeed published the letter of instruction to the said Purple Royal Auctioneers.
  3. The particulars of the said paragraph 6 are as follows;

“...the Defendant denies that the letter of instruction to Purple Royal Auctioneers amounted to publication as alleged as Purple Royal Auctioneers acted as agents of the Defendant.”

This notwithstanding, the particularised statements, and the language and the actual wordings are unknown. Nothing precluded the appellant from making an application to compel the production of the alleged letter in discovery under the purview of Section 22 of the Civil Procedure Act.

  1. It is not in dispute that the security; herein the suit motor vehicle, was repossessed by auctioneers, under instruction by the Respondent, based on an erroneous disposition of default. However, this court cannot infer the terminology used in the purported letter of instruction, pursuant to the acts of the auctioneer. Defamation in itself cannot be imputed by conduct or inferred by actions or omissions. In general, defamatory statements can either be libelous or slanderous. Words will be considered defamatory because they tend to bring the person(s) named into ridicule, or tend to lower their estimation of the right-thinking members of society.
  2. In my view, this court cannot presume the actual “words” and “language” used, without knowing in specificity the libelous words used, in the letter of instruction, in determining whether the same would be construed in ordinary language as defamatory by the recipient third-party, or demeaning on the appellant’s reputation.
  3. Without the actual statement, it would follow that defamation cannot ensue.
  4. Nevertheless, the respondent further issued and/or published a letter of instruction dated 2nd September, 2016, which copy, is on record, to Purple Royal Auctioneers, authorising the release of the motor vehicle reg. No. KBV453L to the appellant, on account that the respondent “...has regularized his loan account... therefore we hereby release the aforementioned motor vehicle to him”. The publication read in isolation, is truthful and not construable in ordinary language as defamatory.
  5. That said, it is noteworthy that the trial court based its ratio decidendi on the fact that the defamation could not be imputed based on the existence of a borrower/lender relationship, wherein the matter constituted exercise of commercial right between Financier and borrower. This court finds the trial court erred in law in making this finding. Firstly, the kind of relationship between a defamer and the defamed does not affect a finding on the tort of defamation. See Hon Nicholas R. Ombija vs Kenya Commercial Bank [2008].
  6. On this point, the Court of Appeal in Raphael Lukale v Elizabeth Mayabi & another [2018] EKLR cited with approval the English case in Pullman v Walter Hill & Co (1891) 1 QB 524, where the English Court of Appeal explained what publication constitutes as follows:

“What is the meaning of ‘publication’" The making known the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it; for you cannot publish a libel of a man to himself. If there was no publication, the question whether the occasion was privileged does not arise……. If the writer of a letter shows it to his own clerk in order that the clerk may copy if for him, is that a publication of the letter" Certainly it is, showing it to a third person; the writer cannot say to the person to whom the letter is addressed, ‘I have shown it to you and to no one else.’ I cannot, therefore, feel any doubt that, if the writer of a letter shows it to any person other than the person to whom it is written, he publishes it” (per Lord Esher, MR).

  1. From the totality of the foregoing, despite the fact that I am in agreement with the trial court’s conclusion, I do not concur with its reasoning. In this instance, the end, is not justified by the means.
  2. It would thus follow that, damages for defamation, exemplary and aggravated damages are disallowed.
  3. However, it is not lost to me that the respondent in an act of negligence misconstrued the status of the appellant’s loan account’s thereby erroneously authorising the repossession of the appellant’s vehicle, howbeit for a matter of hours. The trial court awarded kshs.100,000/= which I find sufficient in the circumstances.

Conclusion

  1. I find that the appeal lacks merit and is hereby dismissed.
  2. Costs of the appeal assessed at Khs.50,000 all-inclusive and are awarded to the respondent.

Dated, Signed and Delivered at NAIROBI Virtually this ………31ST……Day of JULY, 2024.

……………………

WENDY MICHENI

JUDGE

    VICTOR OMONDI VS PLATINUM CREDIT ASSURANCE VICTOR OMONDI VS PLATINUM CREDIT ASSURANCE