IN THE COURT OF APPEAL FOR EAST AFRICA
(CORAM: SPRY. AG. P.. LAW. AG. V-P., AND LUTTA. J.A
CIVIL APPEAL NO. 13 OF 1970
EAST AFRICAN STANDARD (NEWSPAPERS) LIMITED . . . . . . . . APPELLANT
JEREMIAH GITAU KIEREINI . . . . . . . . . . . . . . . . ………………… RESPONDENT
(Appeal from a judgment and decree of the High Court of Kenya at Nairobi (Madan, J.) dated 30th December, 1969 in Civil Case No. 610
14 September, 1970.
I have had the advantage of reading in draft the judgment of the learned Acting President with which I am in substantial agreement and I would only add a few words. Mr. Haffirdh Shamte, an employee of the appellant at the material time was sent on 30th January, 1969 to report on an accident on the Limuru Road. According to his evidence he went with a photographer to the scene of the accident at about 9 a.m. and after taking pictures of the respondent's car, he telephoned Parklands Police Station to inquire if the police had any information about the accident. He was told to direct his enquiries to the Traffic Headquarters in the city; he tried to contact a Mr. Shaffi, the information officer at the Headquarters but did not succeed.
However, a few minutes before 4 p.m. he spoke to Mr. Shaffi on the telephone and was given certain information. He also made enquiries at the Aga Khan Hospital and obtained certain information there from. He then submitted his report to the Editor. On the following day, that is, 31st January, 1969, there appeared in the issue of the East African Standard on page seven, the caption, which is the subject of complaint. Mr. Shamte agreed that the caption was substantially a reproduction of his report. In his judgment the learned judge found that the caption was incorrect in the following respects:-
- As the accident happened soon after midnight the police could not have been mystified about it at 2 a.m., or at all really because the car must have been seen by Assistant Inspector Charles soon after the plaint. It left the scene. The two of them must have met at the police station before, if only minutes before 12.59 a.m.
- The police discovered the car much earlier than 2 a.m.
- The plaintiff received treatment at Aga Khan Hospital where he was registered as a patient. True he was not actually admitted into hospital but this only emphasizes the technically half truthful statement.
- A report was made to police.
- The evidence of the plaintiff, Robert Kangethe and the entry made by the police officer leaves no room for doubt that the car crashed into an electric pole."
According to Mr. Shamte's evidence it seems that he had almost the whole of the working day within which to ascertain or obtain the correct information about the accident. He made inadequate attempt to check the facts and I agree with the learned judge that the report was recklessly prepared on incorrect information, and the appellant must bear responsibility for the consequences. However, I do not question the right of a newspaper in the public interest to describe or comment on any public occurrence as long as that is done fairly and accurately. I think it is clear, and indeed I understood Mr. Malik not to dispute it, that the words in the report are not per se defamatory of the respondent. Mr. Malik submitted that once the car was identified as belonging to the respondent, the caption became libellous, that is, the caption amounted to an innuendo which was defamatory of the respondent.
The principal question which arises is this, what is the meaning ascribed to the caption by the innuendo? In other words, does the caption under the circumstances amount to an innuendo disparaging to the respondent’s character? Paragraph 5 of the plaint alleges that the caption meant and was understood to mean that the respondent "had surreptitiously withdrawn himself from the scene of the accident to evade detection or to conceal some clandestine matter that the plaintiff did not report the same to the police which is a criminal offence…"Mr. Hunter urged that no meaning can be attached to the caption other than a reference to the state of affairs at the material time. He submitted that a reasonable reader knowing the circumstances would not think that the respondent was hiding something or hiding from the police or drunk. With respect I cannot agree. I think the
impression which would be created in the minds of reasonable persons knowing the circumstances would be that there was something discreditable about the respondent's conduct. The innuendo was disparaging to the respondent's character.
The caption imputed the commission of a crime by the respondent even though he was not required to report the accident under section 73 of the Traffic Act Cap. 403. In my view where the words are reasonably capable of being understood as imputing the commission of a crime by a person and are so understood by reasonable persons, those words are defamatory of that person notwithstanding the latter in law not having committed an offence. In my view the caption was likely to be understood in a libellous sense by reasonable persons who knew the circumstances and it was in fact libellous of the respondent. For these reasons I would dismiss grounds l and 2 of the appeal. With regard to ground 3 of appeal, I agree with the learned Acting President that the award of shs. 24,000/= by the learned judge was excessive for the reason that the publication of the libel was limited to very few people; the number of persons to whom it was published was very small - about six in all. There was no evidence that it was published to the readers of the newspaper at large.
In the circumstances, the sum of shs. 8,000/= would be reasonable to compensate the respondent for the injury suffered as a consequence of the libel. I agree with the order proposed by the learned Acting President.