Mary Waithira Kariuki v Nation Media Group [2015] KEHC 513 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 468 OF 2013

MARY WAITHIRA KARIUKI.......................PLAINTIFF

VERSUS

NATION MEDIA GROUP..........................DEFENDANT

JUDGMENT

1. The Plaintiff MARY WAITHIRA KARIUKI  claims from the Defendant NATION MEDIA GROUP that on 23rd April, 2013 in its news bulletin of 8.00 pm the Defendant through its brand QTV Channel broadcasted and published  of and concerning the plaintiff the following defamatory words under  the following heading ‘YALIYOJIRI  MAJIMBO TOFAUTI’ (TRANSLATION:“OCCURRENCES IN  VARIOUS  COUNTIES)”the following  words and  images  defamatory of the plaintiff.

COMMENTATOR:

“ Kwingineko Kayole Catherine Wanjiru  ametoa kilio  Cha haki tangu alhamisi  wiki iliyopita  baada  ya   Kukamatwa kwa mwanawe  na polisi. Imedhibitishwa  Na  maafisa  was polisi  kwamba kijana kuyo Felix Muiruri  amewekwa  kizuizinii katika  nyumba  ya  Watoto ya Kitathuru  baada ya kumng’oa  msichana  Mmoja meno”(TRASNLATION: Elsewhere  in Kayole Catherine Wanjiru has cried  for justice since Thursday Last week  after the arrest of her child by  the police.  It has been confirmed by police officers that the boy Felix Muiruri  has been incarcerated  at Kitathuru Children’s  home after  he knocked  out another  girls  Teeth).

(Film of a flat  in a residential  area with a crowd of onlookers  gathering  below  the flat.   A picture of young boy purportedly Felix Muiruri wearing a school uniform and sign board of Kayole Police Divisional headquarters, Kitathuru Children’s Home, police truck and Catherine Wanjiru is also shown.) Then the above live broadcast was followed by (A picture   of a woman purportedly Catherine Wanjiru narrating her story is shown.  There is a caption below with Catherine Wanjiru name.  A QTV microphone is being held for her) saying-

“ Kuna mmama mmoja  anasemanga amepigiwa mtoto na huyo mmama…..huyo mama ndio  alikuja hapa  na polisi mmoja  wa huko Soweto.  Vile alikuja akaniambia  niwapatie  pesa ama waende na mtoto wangu….sa misi  sikuwaambia kitu….ju sikuwa  na pesa….after  hapo sijawahi muona  kutoka  Thursday. Nimemtafuta nimerudi huko Soweto  sijampta  na pia  huyo polisi  sijampata” ( TANSLATION:  There  is a certain  woman  who usually says her child  has been beaten  and that woman…..That woman  came here   with a police officer from Soweto.  When  she came, she told me that I give them money or they go with  my child…now I never told them  anything…..because  I never had   money ….from  there I have never seen him since Thursday.  I have looked  for him, I have  gone back  to Soweto I have not  found him  and even that  police officer  I have not  found him).

2. The plaintiff further pleaded that  on 24th April, 2013 in its news bulletin of 7.00 pm in NTV Channel broadcasted the defendant through  its brand and/or  channel NTV under the heading NAIROBI MTOTO ALIYEZUILIWA  NA POLISI ( TRANSLATION:“NAIROBI CHILD WHO HAS BEEN DETAINED BY THE POLICE“) broadcast and  published  the following  words  and images  defamatory of the plaintiff:

ANCHOR:

          Kijana  was miaka  minane  alikamatwa  katika  mtaa wa Kayole na kuwekwa seli kwa muda  was siku tatu. Kisha  Mtoto huyo alifikishwa  katika mahakama  ya watoto Milimani kwa madai ya kumng’oa  mwenzake  meno  Walipokuwa wakicheza .  Mwanahabari wetu Sharon Barang’a  ana maelezo zaidi.” (TRANSLATION: An 8 year Old boy was arrested at Kayole state and out in  the cells For a period  of 3 days.  Later the child was arraigned in Court for allegedly knocking out his colleagues teeth when They were playing.  Our reporter Sharon Baranga has further Details). ( A film  of 2 women  who appear worried  leaning on a slub.  The caption “ MTOTO  ALIYE ZULIWA  NA POLICE  “ has  now been edited to include  the words ALIKAMATWA  KWA KUMNG’OA  MWENZAKE  MENO”( TRANSLATION:  HE WAS ARRESTED  FOR KNOCKING  OUT HIS  COLLEAGUE’S  TEETH).

COMMENTATOR:      

“ siku  ya alhamisi wiki iliyopita  haitasahaulika  kwa mama mmoja Anaye julikana kama Catherine Wanjiru” ( TRANSLATION: Last   Week Thursday will  be an unforgettable  day for a certain  lady  Known  as Catherine Wanjiru).

( A film  of a flat  with clothes  hanging  out on  the balcony.  A crowd  of on looking gathers below  the flat  was also shown).

COMMENTATOR:      

Siku hiyo Catherine  alimwacha  mwanawe Felix Muiruri wa  Miaka minane  acheze  na wenzake  na  haikupita muda mrefu Wageni ambao hakuwatarajia.”(TRANSLATION: That day Catherine left her son of 8 years to play with his colleagues And it did not take a  long  time before  she received unexpected visitors).

(Film of lady purportedly Catherine is shown while she is narrating of the events which occurred to a QTV microphone)

“ Vile alikuja  wakaniambia  niwapatie pesa  ama waende na mototo wangu.  Sami  Sikuwaambia kitu juu sikuwa na pesa”. (TRANSLATION: When she came they told me to give them money or they go with my child.  Now I never told them anything because I did not have money).

COMMENTATOR:        “ Baada ya hapo kijana wake alipotea  na alipojaribu kuuliza polisi aliarifiwa  hajaonekana”.(TRANSLATION: After  that her son  went missing  and when  she  tried  to inquire  at the police  she was  informed  he had not been seen).

( Film of Catherine  narrating  her story resumes)

“Nimemutafuta  nimerundi huko Spoweto sijampata, na pia huyo polise sijampata”.(TRANSLATION:   I have searched   for him I have gone back to Soweto I have not found  him, and  I have also not  found that police  officer.”)

COMMENTATOR:        “ Kulingana  na mamake  Felix mtoto alikamatwa baada  ya  Kudaiwa kuwa alimng’oa mwenzake  meno wakati wakicheza.”

(TRANSLATION: “ According  to Felix’s mother  the child was Arrested  after it was  alleged  that he knocked  out his  Colleague’s  teeth  when they  were playing.”)

( A blurred film of a young boy  purportedly Felix Miruri narrating  how the events  took place)

“ Vile  tulikuwa  tunacheza….huyo huyo kulikuwangana  mwizi ameiba simu aka…akaanza  kukimbizwa…..vile  akakimbizwa aka..aka akaanguha mtoto  huyo mtoto  akaanguka .  Sasa mama  huyo….brother ya  huyo mtoto akakuja  akashika  wawili wetu.  Hawa wawili waka…walichapwa  sa vile walichapwa  kesho yake  tukapelekwa  kwa chief”. ( TRANSLATION: “ When we were playing….that that …there was  a thief who had stolen a phone he  started being  chased…. When  he was being  chased  he…he  knocked down the child, the child  fell down…now  the woman  …the child’s brother came  and caught  two of us.  These two were…were beaten now when they were beaten the next  day we  were  taken  to the chief”.)

COMMENTATOR:       “Lakini Felix  hakuwa  pekee.  Alikamatwa pamoja na watoto Wengine ambao wazazi wao walitoa pesa za  kugharamia  pesa Sa hospitali. ( TRANSLATION:  “ But Felix  was not alone.   He was arrested together with other children whose parents removed Money that catered for the hospital expenses.”)( A film  of a lady  purportedly one of the parents  whose  child was arrested  standing  besides  Catherine  narrating  her story of what  transpired).

“ Tulitoa  elfu kumi, nikamwambia  mama huwezi ku…kuongea  na sisi kama wazazi  na wewe ni mzazi? Mama  akasema, kama  mnataka  tumalize  hii kesi mtatoa kila  mzazi elfu kumi kumi  tuliongea kwa  chief.  Nikamwambia  mi niligharamia Kenyatta na elfu yangu tatu.  So unataka  nikuongezee elfu saba? Akasema  ndio.   Mama huyu  akasema yeye hana chochote.”( TRANSLATION:  “We  removed  ksh 10,000/-, I told  the lady  you can’t talk to us as parents  and you  are a parent?  The lady said, if you  want us to finish this  case you will  remove each parent 10,000 we spoke  of at the chief.  I told her  I catered  for the expenses  at Kenyatta  with my 3,000.  So do you want me   to add  you 7,000? She said yes.  This lady said she  never had  anything.”)

( A film of a police officer  narrating  the events  which took place)

“ Ndiyo hiyo kesi ilienda  katika Soweto  police station.  Na basi huyo kijana  akachukuliwa na polisi…na basi katika  juhudi  ya police  kutafuta  vile  anaweza  kuwa accompanied na mzazi wake  alikataa kata kata  kuandamana na polisi.  Basi mtoto peke  yake akawekwa  ndani.” (TRANSLATION: “ That  case went  to Soweto police station.  And then this boy was  taken  by the police….and in the efforts   of police looking  as to how  he can  be accompanied  with the  parent who completely refused to accompany  the police.  Then only the child  was put  inside.”)

( A film  of a board  of Kayole  Police Station  Division Headquarters)

COMMENTATOR:       “ Ilibainika  kuwa kijana  huyo alizuiliwa polisi jumapili alipofikishwa  katika  Mahakama ya watoto ya Milimani.  Kisha alipelekwa  katika makao ya watoto Kitathuru.  “ Sharon Barang’a NTV(TRANSLATION: “ It  was later  discovered  that the boy  had Been in custody until Sunday when he  was taken  to Milimani  Children’s Court.   Later he was taken to Kituthuru  Children’s Home.  Sharon Barang’a NTV”.)

ANCHOR:  “ Bila shaka  ni taarifa  ya kustaajabisha mzazi kuhakikisha  kwamba mtoto wa mwenzake  anaingia korokoroni siku tatu kwa kummng’oa  mtoto  wake jino.  Bila  shaka  kuna njia  za kuwaadhibu watoto  au kuwasemesha wazazi kukomesha  visa kama hivyo.”(TRANSLATION:” There  is no doubt  that this is information  that is both surprising and worrying  seeing  a parent  ensuring  a fellow  parent’s  child is  incarcerated  for  3 days  for knocking  out her child’s tooth.   There is no doubt  there are other  means of  disciplining  children  of scolding parents  to curb scenario such as  this).

3. The plaintiff further pleaded that on the same day in its 9.00 pm bulletin in NTV  the Defendant through its  brand and /or channel NTV broadcast published  under The heading  caption “ CHILD  ABUSE? “ The following words and images  Defamatory of the plaintiff.

ANCHOR:  “ Let’s look at  an incident  that could attract  the attention  of children  Rights  Advocates.  Police  in Kayole arrested  and detained  an 8 year old  in the  cells  on allegations of hurting  a playmate.  The boy’s mother claims that she did not know her child’s whereabouts for 3 days.  A police did confirm detaining the boy.”

(A film of 2 ladies leaning on a wall looking clearly distraught and worried.  The Caption below that reads child abuse has been edited to the words “8 year old Detained in police cells.”)

COMMENTATOR:        “Just like any normal day Catherine Wanjiru permitted her son Felix Muiruri to go and play with his friends.  Little  did she know  that the events  of the day  would haunt  her as she would  be separated   from her son  for a period of 4  days.   A few hours after she released her son, she received some unlikely visitors with a chilling message.’

( A film of  a lady   with  a caption Catherine  Wanjiru narrating  her story as to what  Allegedly  transpired. AQTV microphone is held  as she speaks) “ Vile  alikuja  akaniambia  niwapatiepesa a ama waende  na mtoto.  Sa  misikuwaambia kitu  ju sikuwa n apes”.( TRANSLATION: “ When she came  she  Told me  I give them money or  they go  with my child  now I did not tell them Anything because  I did not  have money.”)

( A film  of a crowd  of people gathered  under a block of flats)

COMMENTATOR:        “ What followed  later was  an endless  search  for her son. A Search  that took  to a nearby police station but I was  told her son  wasn’t  there.”

( The picture  reverts  to the film of Catherine  Wanjiru narrating  her story.) “ Nimemtafuta  nimerudi huko Soweto  sijampata.” (TRANSLATION:   “ I have Searched for her, I have  not found her .  And I have  also not found the police officer)

COMMENTATOR:        “ According  to Catherine  the boy was  arrested together  with other  children  after they were accused of  hurting  another child  while they were playing.”

( A blurred  film of  a young boy purportedly Felix Muiruri narrating the incident  as It allegedly  occurred).“ Vile   tulikuwa tunacheza….huyo kulikuwangana mwizi  ameiba simu aka…akaanza Kukimbizwa…vile  akakimbizwa, aka…akaangusha  mtoto.  Huyo mtoto akanguka. Sasa  mama  huyo …brother  ya huyu mototo akakuja  akashika wawili wetu.  Hawa  Wawili  waka…walicha …walichapwa sa vile   walichapwa  kesho yake  tukapelekwa  Kwa chief.”(TRANSLATION:” When we  were playing …that that …there was a chief  Who had  stolen a phone  he started being chased…when he  was being  chased  he ..he  knocked  down  the child, the child  fell  down…..now that  woman…the child’s Bother came  and caught  2 of us. These  2 were…were  beaten now when  they  were Beaten  the next day we were  taken to the chief.”)

( The picture  reverts to the picture  of the 2  women  shown earlier.  The caption CHILD ABUSE?  Has been edited  to include BOY ALLEGEDLY BEAT UP PLAYMATE

COMMENTATOR:        “some parents of the other children co-accused with Felix bailed the children out and also paid  the hospital bill for the child who  was hurt.  But  Felix’s mother  didn’t  have the money.” (Film of another  woman standing besides  Carherine Wanjiru narraring  how they Paid for  the beaten  child’s medical expenses.  The lady narrates  her story  through QTV microphone.  The  caption later reveals  her name as Veronica Wambui)“ Tulitoa elfu kumi nikawambia  mama huwezi ku…kuongea  na  sisi kama  wazazi na Wewe ni mzazi?  Mama  akasema , kama  mnataka  tumalize  hii kezi mtatoa  kila Mzazi  ile elfu kumi kumi  tuilongea  kwa chief. Nikammwambia  mi niligharamaia  Kenyatta  na elfu  yanf=gu tatu.  So unataka  nikuongezee elfu saba akasema  ndio.Mama  huyu akasema  yeye hana  chochote.”(TRANSLATION: “ We  removed the  10,000 .  I told the lady you cannot talk to us  as parents and you  are a parent? The lady said, if you  want us to finish this  case you will removed each  parent 10,000 we spoke of at the chief.  I told her I catered  for the expenses  of Kenyatta  with My 3,000 .  So do you  want me to ass you 7,000? She   said yes .  This lady  said  she Never  had anything)( The picture  changes  and badge  of Fibias  Karanja Kenya police  is shown .  The said Police officer  proceeds  to narrate  the version  of events  as they had transpired Through  QTV microphone).

COMMENTATOR: “ Police  superintendent  Fibias  Karanja  of Kayole  police  station  Had this  to say>’“ Ndiyo hio kesi ilienda katika Soweto  police station. Na basi huyu kijana  Akachukuliwa na polisi…na  bas..katika  juhudi  ya polisi kutafuta  vile  anawezaKuwa  accompanied  na mzazi  wake  akikataa kata  kuandamana  na polisi.  Basi mtoto Peke  akawekwa ndani” ( TRANSLATION: “ Yes  that case  went to Soweto  police stationAnd then this boy was  taken by  the police  and in the efforts  of the police looking  as To how  he can accompanied  with the  parent   who completely  refused  to accompany The police.   Then only the child was put.( Picture  changes  to a building  with 2 people  standing outside  and a police vehicle  Parked   outside.  Later the sign board of Kayole  police  Division headquarters  is also Shown)

COMMENTATOR:   “ The  young boy  was taken  to Milimani Children’s court then to Kitathuru Children’s  Home.  Sharon Barang’a NTV.”Head

4. The plaintiff averred that the above reproduced broadcast words and images referred to her in the natural and ordinary meaning and were understood to mean that; she abused and had abducted the child; that she is a person of unconscionable morals as she was trying to benefit from the child's misfortunes; she is an extortionist; that she kidnapped and or abducted the child yet the child's mother knew where her son was; that she is an irresponsible parent who does not know how to resolve domestic issues; that she is a corrupt person as she had colluded with the corrupt police officers to extort money from the parents of the children who hurt her child; that she is a criminal and that she is dishonest and deceitful.

5. The plaintiff stated that the publication was full of falsehood since she on 5^th March, 2013 made a report at the Chief's camp in Kayole that 5 boys namely, Felix Muiruri, Fidrous Odhiambo, Titus Akengo, Martin Kamau and Charles Kairu had assaulted her daughter and later reported to the Soweto Police Station and the said boys were arrested. She stated that the news broadcast was actuated by malice since the publishing of the news segments were done without seeking her comments and clarification from her on the accusations; publishing the said segments while knowing that they were libellous and proceeding with the publication having established that the prospect of material advantage in publishing the said words outweighed the prospect of material loss. She alleged that the said publication was made in a sensational manner and with a recklessly misleading headline; that prior to the publication on 23^rd April, 2013, she received a phone call from one of the Defendant's reporters seeking to know more about the incident but that the said reported never showed up as agreed; that the Plaintiff went to give her story to the Defendant on 25^th April, 2013 so that a retraction could be made to no avail. She averred that the said publication has occasioned her psychological distress and has had to move to another neighbourhood.

6. She sought general damages, aggravated and or exemplary damages, special damages of KShs. 5,800/=, an order compelling the Defendant to publish an unequivocal apology and retraction to her on its QTV and NTV  channels at similar times and or similar programmes bearings equal prominence as the defamatory statements and costs and interest.

7. The defendant despite being served with summons to enter appearance on 15^TH November, 2013 through S. Owino Head of Legal, neither entered an appearance nor filed defence to the plaintiff’s suit and on 11^th December, 2013 exparte interlocutory judgement was entered against the defendant.

8. Jane Acham (PW1) who is a counselling psychologist with Women's Rights Awareness Programme testified for the plaintiff and stated that the Plaintiff was in a very bad emotional state at the time she was counselling her. That the Plaintiff broke down in their meeting and it is her 7 years old daughter who indicated that they were insecure at Kayole after being attacked by some young men who injured her. That the Plaintiff reported to the Defendant who instead highlighted the story in the negative. She produced a counselling report (P. Exhibit 1) to that effect.

9. The Plaintiff (PW2) testified on oath and narrated the publications as pleaded and produced a CD for the broadcast as P. Exhibit 2 and certificate to authenticate the video CD as P. Exhibit 3. She also produced photographs of her assaulted daughter as P. Exhibit 4 (a) and (b). She stated that after the assault, her daughter was treated at Mama Lucy Kibaki Hospital and produced (P. Exhibit 5 (a) to (d) treatment documents to that effect. She stated that she reported to Kayole chief’s camp where she was issued with a P3 form (P. Exhibit 6). That she found out that the boy who had assaulted her daughter was called Felix Muiruri. That Felix's mother is the lady who was alleging that she did not know where her son was and that the plaintiff had demanded money from her. She stated that Felix was charged in Milimani Children Court Case No. 119 of 2013.she produced a charge sheet as Pex 4  She maintained that what was broadcasted concerned her and not any other person and lamented that the news was aired without interviewing her. She produced a letter P. Exhibit 7 with which she raised a complaint or rather concern on the publication with the Defendant and even send them photos of her daughter before and after the assault but that she did so in vain. That because she was being ridiculed that she abducted someone's child, she had to move houses. She stated that she has had to go for counselling and that she incurred a cost of KShs. 5,800/= to obtain the video CD from Synovate.

10. Dickson Ndicho Kariuki (PW3) testified that he lived in Kayole in the neighbourhood where the incident took place. He was he plaintiff’s son and that he was at the balcony on the material day when he heard screams. That he went to the scene and found her sister going by the name Eunice bleeding. That he was shown the boys who had injured her and demanded that they take him to their parents. Shown the video clips, he stated that the boy who was saying that the girl was hit by a thief is one of the boys who assaulted his sister. That he was referring to him as the brother to the girl who arrested them and took them to the chief. He denied that there were thieves who were escaping.

11. Chief Inspector Hussein Abduba (PW4) who was at the material time stationed at Soweto Police Station recounted that on 5^th April, 2013, the Plaintiff made a report on her daughter's assault by a young boy. Those investigations were conducted and the said boy, Felix Muiruri was charged in court. Shown the video clip, he denied that officers demanded money from the boy's mother. He stated that he was informed by the officers that the boy's mother was asked to accompany the police to the police station but she refused. PW 4 watched the video clips and stated that they did not accurately reflect what transpired. He affirmed that Felix's mother knew where her son was.

12. Corporal Peter Lempreng Cherono (PW5) from Soweto Police Station confirmed that the Plaintiff made a report of her daughter’s assault on 5^th March, 2013. He produced a certified copy of the Occurrence Book to that effect. He stated that the matter was investigated and Felix was charged on 19^th March, 2013. He produced a copy of the OB as P. Exhibit 11 and charge sheet as P. Exhibit 2.

13. Kenny Otwere (PW6) who is the Assistant Chief of Kayole Central Sub-location recounted that the Plaintiff visited her office on 5^th March, 2013 in company of 4 boys (Felix Muiruri, Martin Kamau, Fidelis Odhiambo and Newton Karanja) and her daughter. That she reported that the said boys had assaulted her daughter. He summoned the boys' parents with a view of resolving the matter amicably but the said parents said they could not pay the girl's medical bill since it was an accident. And that because the parents failed to agree, he referred them to Soweto Police Station. He stated that later, the Plaintiff came to him in company of a police officer and asked for directions on where one of the boys schooled. He stated that after the news broadcasting, many people called him to find out what had transpired and that most neighbours knew that it was the Plaintiff that was being referred to in the broadcast.

14. George Okoth Abuor (PW7) who works with IPSOS Synovate as the Assistant Editorial Manager testified and explained that their mandate was among others to record Television and Radio station reports. He produced the video CDs as P. Exhibits 2A, 2B, 2C, 3 and the certificate to authenticate the said as P. Exhibit 8.

15. At the close of the plaintiff’s case her advocate Mr Gomba filed written submissions and submitted authorities in support of her claim. I have given due consideration to the parties pleadings and submissions. The issues that emerge for determination are:

1.  whether the Defendant published the words complained of.
2. Whether the words published referred to the plaintiff and whether they were false.
3. Whether the plaintiff’s credibility and reputation has been injured.
4. Whether the publication bore the defamatory meaning attributed to them in the plaint.
5. Whether the words were published in good faith, in public interest without malice and whether the defence of qualified privilege would apply.
6. Whether there was a notice of intention to sue or demand for an apology.
7.  Whether the plaintiff is entitled to damages and if so how much.
8. Who should bear the costs of the suit?

16. I will determine the above issued into two namely, whether the plaintiff proved that she was defamed and secondly if she is entitled to any damages and how much.

17. The Plaintiff was able to prove on a balance of probabilities that it is her who was referred to in the bulletin. It emerged from the evidence on record that her daughter had been assaulted by among others a boy named Felix Muiruri who was charged with the offence of assault. It is after the said Muiruri was arrested that the boy's mother made claims that her son had disappeared and that she did not know his whereabouts. Further, it emerged from the evidence of PW6 that the neighbours knew or understood that it was the Plaintiff that was being referred to in the bulletin to have caused the boy's disappearance. It is therefore clear that the bulletin referred to the Plaintiff and no one else. It must be noted that a defamatory article must not necessarily refer to one by name rather if an inference can be drawn from the surrounding circumstances that it refers to a certain person then that is enough proof just like in this case.

18. Secondly, from the evidence that was presented by the Plaintiff, and the documents she produced and her witnesses which I found credible and believable, it was established that the boy, Felix Muiruri was arrested by police officers and taken to Soweto Police Station and later charged in court with assaulting the plaintiff’s minor daughter Eunice following interrogation at the Kayole Chief Camp. There is no evidence to the contrary. The information in the bulletin can therefore not be found to be true. It was further clear from PW6's evidence that neighbours were asking about what transpired. Secondly, PW1's evidence was that the Plaintiff suffered some distress as a result of the bulletin. She had to be cancelled and she had to move houses because she was labelled as an abductor. Clearly and considering that the said bulletin contained no truth, the plaintiff was defamed and as a result her reputation was injured.

19. Fortified by the case of Mikidadi v. Khalfan & Another [2004] 2 KLR 496, I am of the view that no defence or excuse could hold since the Defendant did not check whether the publication was factual. In libel, it is not enough to say that the libel was originated elsewhere and that the defendant merely repeated it. From the evidence on record, and the broadcasts which this court had the opportunity to view in court and reviewed during the writing of this judgment, the Defendant did not seek verification of the story from the Plaintiff, the police or the area Chief hence the Defendant was motivated by sensationalism of reporting a very juicy issue of child abuse which attracts the attention of viewers. The defendant is a national broadcaster and must have known that the broadcast was being viewed by the whole world. It even called on Child rights activists to take interest in the case and the unfolding events of outright child abuse. Due to the Defendant's carelessness and recklessness I draw an inference of malice and the defence of privilege though not on record would not stand.

20. On whether the plaintiff was entitled to any damages, in Oyaro v. Alwaka T/A Weekly Citizen & 2 Others [2003] KLR 574 it was held that an action for defamation is essentially an action to compensate for harm done to his reputation and the Court will therefore take into account the Plaintiff’s profile vis-à-vis what is published against him. Courts have been known to award exemplary damages where it is established that the Defendant’s motive was purely financial and that the financial prospects of broadcasting a story which it knows to be false exceeds the potential financial costs in the event that they are found liable. Further the Court has discretion to award general and aggravated damages when circumstances permit and the plaintiff relied on Machira v. Mwangi & Another [2001] 1 KLR 532, Ochieng & 8 Others v. Standard Limited [2004] 1 KLR 225, Kalya & Another vs. Standard Limited [2002] 2 KLR 665.

21. In libel damages are at large and the discretion as to what to award is left to the Court. However in conserving the amount to award the Court takes into account the reputation of the plaintiff, the severity of the defamatory imputation, the extent of the publication and any aggravating/mitigating factors. There is no doubt that the bulletin was not aired once and further that no apology was tendered to the Plaintiff. Considering Lucy Njiru v. Nation Media Group HCCC No. 835 of 2007 I find that an award of Kshs. 1,000,000 (1 Million) all inclusive of general and exemplary damages suffices. The Plaintiff is also awarded special damages of Kshs. 5,800/= pleaded and proved plus costs and interest of this suit.  Interest at court rates on general damages to accrue from the date of this judgment until payment in full. Interest on special damages to accrue at court rates from the date of filing suit until payment in full.

22. Dated, signed and delivered in open court at Nairobi this 8^th day of December, 2015.

R.E.ABURILI

JUDGE