Hipora Securities Limited v Ododa & another (Civil Appeal 636 of 2022) [2024] KEHC 10614 (KLR) (30 August 2024) (Judgment)
Neutral citation:
[2024] KEHC 10614 (KLR)
Republic of Kenya
Civil Appeal 636 of 2022
CJ Kendagor, J
August 30, 2024
Between
Hipora Securities Limited
Appellant
and
Patrick Oduor Ododa
1st Respondent
Henry Kioko
2nd Respondent
(Being an Appeal from the Judgment and Decree of Hon. P. Muholi, Principal Magistrate, delivered on 22nd July, 2022 in Milimani C.M Civil Suit No. 10811 of 2018)
Judgment
1.The 1st Respondent was gainfully employed by the Appellant until 26th October, 2018, when he was dismissed. On 13th October, 2018, he was arrested by the Police for inquiry and interrogation about a shoplifting incident that had allegedly occurred at the Appellant’s place of work. The police released him the following day without preferring any charges against him. The next day, on 15th October, 2018, the 2nd Respondent allegedly published defamatory words against him in a WhatsApp Group meant for the supervisors of the Appellant. The 1st Respondent sued the Appellant and the 2nd Respondent for general and exemplary damages for defamation therefrom in Milimani CMCC No. 10811 of 2018.
2.Upon hearing the claim, the trial court held in favour of the 1st Respondent and awarded him general damages of Kshs.250,000/- and exemplary damages of Kshs.200,000/-. He was also awarded costs and interest.
3.Being aggrieved by the said decision, the Appellant lodged an appeal in this court, asking the court to set aside the judgment of the lower court. In its Memorandum of Appeal dated 7th August, 2022, the Appellant raises seven grounds of appeal which are as follows:a.That the Learned Honorable Magistrate erred in law and fact by entering judgment in favor of the 1st Respondent against the Appellant when on the contrary the Trial Court misapprehended and failed to properly evaluate written submissions by the Appellant and evidence on record.b.That the Learned Magistrate erred in failing to take cognizance of the fact that there was no nexus and/or any relationship between the Appellant and the 2nd Respondent.c.That the Learned Honorable Magistrate erred in law by failing to find that there was no material evidence presented to the Honorable Court that the alleged WhatsApp group is owned and/or managed by the Appellant.d.That the Learned Honorable Magistrate erred in law and in fact in holding that the 1st Respondent had proved his claim for alleged defamation on a balance of probabilities.e.That the Learned Magistrate erred in law by awarding the 1st Respondent General Damages of Kshs 250, 000 Exemplary Damages of Kshs. 200 000 plus costs of the suit and interest.f.That the Learned Magistrate erred in law and in fact in failing to sufficiently appreciate that the 1st Respondent’s evidence was purely based on falsehoods, hearsay, gaps, and hypothesis with no basis at all.g.That the Honorable Magistrate erred in law and fact by making conclusions that are not supported by evidence on record.
4.The appeal was canvased by way of written submissions, for which this court gave due consideration.
The Appellant’s Case
5.The Appellant submitted that there was no nexus and/or any relationship between the Appellant and the 2nd Respondent. It also argued that there was no material evidence presented to the trial court to show that the alleged WhatsApp group was owned and/or managed by the Appellant. In addition, the Appellant submitted that its actions (which has been denied) was motivated by the desire to safeguard public interest in demanding for honest employees as well as to inculcate discipline to dishonest employees. It also submitted that the 1st Respondent did not adduce evidence to show that he was subjected to public hatred, contempt, ridicule, or caused him to be avoided. It also submitted that the words amounted to fair comment on a matter of public interest; they were published in good faith and were accompanied by assertions of truth and fair comment and were not defamatory at all.
The 1st Respondent’s Case
6.The 1st Respondent submitted that there was a nexus between the Appellant and the 2nd Respondent in that the latter was an employee of the former. He submitted that the Appellant’s contention that it did not own the said WhatsApp group beats logic since the same is run by its supervisors. He further submitted that the said comments were not fair comments and that he had proved his case against the Appellant on a balance of probabilities.
Issues for Determinationa.Whether there was a nexus between the Appellant and the 2nd Respondentb.Whether the defense of fair comment is available to the Appellants
Whether there was a nexus between the Appellant and the 2nd Respondent
7.The 1st Respondent submitted that the 2nd Respondent was an employee and/or officer of the Appellant at the time of the alleged publication. He also alleged that it was the 2nd Respondent who published or caused the publication of the alleged defamatory words. The Appellant, however, denies that the 2nd Respondent was their employee.
8.This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
9.The role of the 2nd Respondent in the alleged publication of the defamatory statement was heavily contested at the hearing in the lower court. In his examination-in-chief, the 1st Respondent said ‘I know Henry Kioko, he was the operations manager.’ This statement was not controverted on cross-examination. In re-examination, he stated that ‘Henry is the General Manager. I did not work as the Human Resource in the Company.’ On the other hand, DW1, the H.R. Manager of the Appellants, stated in examination-in-chief, ‘I have never met Mr. Kioko. We do not have a General Manager, instead we have an operations manager.’ The trial court considered the two versions and believed the version given by the 1st Respondent.
10.The lower court did not place high premiums on the role of the 2nd Respondent in the alleged publication of the defamatory statement. Instead, the court found that the publication was made in a WhatsApp group of the Appellant’s supervisors, irrespective of who published the statement. The court observed, ‘Whoever published the words knew that they were not true in regard to the Plaintiff.’ Thus, the Court held that the Appellant published the defamatory Statement, even though it could not single out who among the Appellant’s supervisors posted the defamatory statement.
11.I have relooked at the evidence before me and have formed the opinion that the Appellant cannot detach itself from the defamatory publication. The information contained in the published statement points to the observation that the statement's author had access to precise employment details of the Appellant’s employees. The author must have been a custodian of the Appellant’s employee records, including their respective employee numbers and information that could not have been available to a stranger. Notably, the accuracy of the employee’s details in the defamatory statement was not controverted during the trial. In my view, the 1st Respondent proved that it was more probable that the Appellant’s employee authored the defamatory message than an outsider.
12.During the hearing, the 1st Respondent stated that at the time of his dismissal in 2018, Mr. Kioko, the 2nd Respondent, was the operating manager. In his examination-in-chief, he stated, ‘I know Henry Kioko, he was the operations manager.’ When the Appellant’s HR Manager took to the stand on 21st September, 2021 (about three years after the 1st Respondent left the Company), he confirmed that the company’s organizational structure has the operations manager position. He did not controvert the 1st Respondent’s evidence that Mr. Kioko was holding that position in 2018 when the defamatory statement was said to have been published.
13.The Court is entitled to look at the evidence and the circumstances. The totality of such evidence and circumstances persuades me to hold that the 2nd Respondent published the defamatory statement, and he published it within the course and scope of his official duties as the Appellant’s employee.
14.It then follows that the Appellant is vicariously liable for tortious acts of the 2nd Respondent.
15.The court in National Social Security Fund Board of Trustees v Ankhan Holdings Limited & 2 Others [2006] eKLR cited with approval the decision of the House of Lords in Williams and Another v Natural Life Health Foods Ltd and another [1998] 2 All ER 577 at 582 which held that:
16.In the case of Tabitha Nduhi Kinyua vs Francis Mutua Mbuvi & Another Civil Appeal No. 186 of 2009 [2014] eKLR the court stated:-
17.As to whether an employer can be held vicariously liable for defamatory actions of his employees, I am guided by in Gatley & Lindsell on slander and Libel 11th Ed. at page 197, as was quoted in Sicily K. Kariuki v Standard Group PLC & 6 Others [2020] eKLR:-
Whether the Defense of Fair Comment is available to the Appellants
18.In Halsbury’s Laws of England Fourth Edition Vol. 28 page 45, paragrapgh 145, the authors state;
19.The appellant relied on the case of Nation Media Group & Another vs Alfred N. Mutua [2017] eKLR, where the court defined the scope of the defence of fair comment thus;
20.During the trial at the lower court, the Appellant’s Officer, in cross-examination, admitted that the Police did not prefer any criminal charges against the 1st Defendant and that none of the recovered items were found in the 1st Respondent’s possession. He also states as follows; ‘The Claimant was only taken to Kasarani Police station. He was not charged in court. Some items were recovered, they were not in the claimant’s possession.’
21.The publication in question also depicted the 1st Respondent as a thief and was not meant to be an opinion. The message read as follows;-
22.I rely on Gatley on Libel and Slander 6th Edition Page 706 where the learned authors stated that:-
23.The court associates itself with the decision of the High Court in HCCC No. 1709 of 1996 J.P Machira vs Wangethi Mwangi & Another, where it was held inter alia that:-
24.In the circumstances, I find that the defence of fair comment did not apply as the publication was not expressed as an opinion of the Appellants but as proven facts. I find that the language used by the defendants in the publication is a clear manifestation of malice on their part against the 1st Respondent, and therefore, the defences raised are not available to them.
25.Lastly, the Appellant argued that the Learned Magistrate erred in law by awarding the 1st Respondent General Damages of Kshs.250,000/=, Exemplary Damages of Kshs.200,000/= plus the costs of the suit and interest. On the other hand, the 1st Respondent argued that the trial court awarded just damages against the Appellant and the 2nd Respondent, and as such, there is no reason for this Honorable Court to interfere with the awards.
26.In deciding whether to disturb the quantum given by the Lower Court, the Court should be aware of its limits. As an exercise of discretion, it should be done judiciously and conclusively in the circumstances to ensure that the award is not too high or too low to be an erroneous estimate of damages.
27.The Court of Appeal pronounced itself succinctly on these principles in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another vs Lubia & Another (No 2) [1985] eKLR as follows:-
28.I adopt the reasoning of the Court in Joseph Njogu Kamunge vs Charles Muriuki Gachari [2016] eKLR where the court held that;
29.Similarly, in the English Court of Appeal decision in the case of John v MG Ltd the Court held:-
30.I find nothing in the Judgment of the lower court to suggest or even in the arguments advanced by the Appellant’s Counsel to suggest that the Learned Magistrate erred in its findings, nor has it been demonstrated that the award is inordinately high as to be an erroneous estimate. The upshot is that I hereby dismiss this appeal with costs to the 1st Respondent.
31.Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON 30TH AUGUST, 2024.………………………………C. KENDAGORJUDGEIn the presence of:Court Assistant: HellenAdvocate for Appellant: Adv. Tuwei holding brief for Adv. KirimiNo appearance for the Respondents