The Star Newspaper and its publisher, Radio Africa Group, have been left licking their wounds after the High Court awarded over Ksh20 million in damages to a businessman who sued the newspaper for defamation. The ruling deals a major blow for The Star newspaper, which has been struggling to break-even in the news industry.
In a ruling delivered on 28th July 2021 by Justice Kiarie Waweru Kiarie at the Homa Bay High Court, Radio Africa Group has been ordered to pay Ernest Omondi Owino and his company Mbingo Enterprises Ltd, Ksh10 million each in general damages and Ksh1 million each for exemplary damages, bringing the total amount to Ksh22 million on top taking care of the cost of the suit.
Mr Omondi, a low-profile businessman, sued The Star newspaper, Radio Africa Group and Felix Olick, the author of the article, over an article implicating the company in an investigation relating to Migori County Governor, Mr Okoth Obado.
In the article published on 26th September, 2018, titled “EACC Probes Obado’s Sh100m Palatial Home”, The Star, quoting the the Ethics and Anti-Corruption Commission, reported that Mbingo Enterprises was one of the dubious companies registered by Mr Obado and which was used to build his home. It also reported that Omondi received Sh700 million in questionable contracts by the county.
Mr Omondi, however, proved in court that the company was registered on 22nd September 2009 before the county government of Migori County was established. “The publication imputed criminality on the part of both plaintiffs and this must have harmed their public standing,” the judge said. “After considering the authorities cited by both parties I award Ksh.10 million to each plaintiff in general damages, Kshs.1 million exemplary damages to each plaintiff against the defendants jointly and severally.”
During litigation, The Star had admitted the publication of the offensive article, arguing that it was factual and published in good faith due to immense public interest. But documents presented in court by Mr Omondi proved that the second plaintiff was neither incorporated by nor with the influence of Mr Obado.
The Star had published an apology on 26th September, 2018, explaining that it had information from the EACC, but that was not enough to appease the plaintiffs and the judge.
The test to determine whether a statement is defamatory is an objective one which depends on what a reasonable person on reading the statement would perceive, Justice Kiarie said.
He cited Halsbury’s Laws of England 4th Edition Volume 28 which states: In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.
“In this case, he concluded, the Star rushed to publish the impugned article without checking on its veracity. “The fact that one is under investigations does not make him/her guilty of the allegations being investigated,” the judge said. “Though the first defendant testified that the story behind this case was factual, the apology that was published is an indication that the defendants realized that it was not. The plaintiffs have proved the same to be false.”
He then issued the killer punch: “The circumstances under which the publication was made, any person reading the impugned article would conclude without straining to do so that the defendants were corrupt and formed part of the cartel that was siphoning public funds in Migori County. I therefore make a finding that the article complained of was defamatory.”
Gatley on Libel and Slander, quoted by the judge, defines defamation as follows:
“The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man’s discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit.
“The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory.”