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Judiciary must stop excessive libel awards that could kill media

It was a story that should have shaken the Fourth Estate to the core. Not clear why all the media houses did not splash it. Maybe it’s because journalists tend to be shy of making the news. Or, in the wisdom of editorial pontiffs, politics trumps everything. Or people are no longer able to connect the value of Press freedom to their everyday life.

The Star newspaper was hit with a Sh22 million defamation fine. Justice Kiarie Waweru Kiarie imposed the penalty in favour of businessman Ernest Owino and his Mbingo Enterprises. A 2018 story had stated that he was under investigation by the Ethics and Anti-Corruption commission for suspected corruption.

The Star in its defence in court said the story was factual and published in good faith due to immense public interest,” the paper reported on August 2 (p.4). But the judge said Lion Place “rushed to publish the impugned article without checking on its veracity”.

The court also said The Star had realised the flaw of its article and published an apology on September 26, 2018. “The court held even though the reporter who wrote the story testified that it was factual, the published apology was an indication that the media house realised that the story was false.”

The ruling is shocking. Kenya Editors Guild President Churchill Otieno said, “Inordinate libel awards are a threat to the development of Kenya’s democracy and it is time the courts took note of these judicial excesses and put a stop to them”.

He advised The Star to appeal, arguing “our judges owe us jurisprudence that does not prioritise private rights over communal ones”. Disputes ought to be referred to the Media Complaints Commission which, Otieno said, “is uniquely qualified to understand the ebbs and flows in our media’s processes and is sufficiently independent to render fair arbitration”.

Article 19 Eastern Africa regional director Mugambi Kiai deplored the ruling as “highly punitive” that “leaves a chilling effect on the media”.

The Star’s legal officer Linda Musita described a frightening state of affairs at the courts. She wrote that the media has been sued by magistrates, High Court judges, Court of Appeal judges and Supreme Court judges. There are a number of active cases.

“The script for a defamation case is familiar across the board. All the available defences provided for media houses under the Defamation Act are disregarded by the court.

“If an apology was made by the media house even prior to the lawsuit, it will not be considered by court as proof that there was no malice or ill intention in publishing the story. An apology is taken as an admission of guilt, evidence of defamation and sufficient justification for an excessive judgement”.

It gets more hopeless for the media. “Every avenue of appeal all the way to the Supreme Court already has one or more judges who have sued the newspaper for defamation. In addition, when a media house appeals an excessive judgement there is a condition to deposit the amount in court or in a joint account with the litigant’s lawyers,” Musita wrote.

Is this fair? Does this situation advance media freedom that is protected under the Constitution? The Judiciary must address this grave matter urgently.

See you next week!

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