Lion Place has been hit. Again. Just six months after the High Court in Homa Bay struck the Star with a Sh22 million fine for defaming a businessman, on February 3 a Nakuru court ordered the paper to pay a former Egerton University vice chancellor Sh11 million on similar grounds.
The suit followed a story published in 2019 that said former President Daniel arap Moi had dished out Agricultural Development Corporation land to his cronies. Among them was the former VC named by the Star.
But it was an error. The alleged beneficiary was another man who shares a name with the former Egerton boss. The reporter confused him with the professor.
In an internal communication to the Star editorial team seen by The Media Observer, Lion Place lawyers say “it was an honest mistake and unintentional defamation”.
“Make sure we see and thoroughly review all the documents a reporter is relying on for a story before publishing,” the lawyers advised.
“Ensure documents are quoted accurately. Relevant documents in the ADC land issue did not mention a ‘former Egerton University Vice Chancellor’.” That means the error occurred because immediately the reporter saw the name he or she concluded it was the former VC.
“Many prominent Kenyans share names with wananchi. Don’t get excited when you see such names in a story. Always countercheck to confirm that a popular name in a story is in fact that of the prominent figure. Always fact-check and encourage your reporters to do the same”.
Lion Place is appealing the ruling but it is mandatory in such cases that the appellant must first deposit the Sh11 million in court or a joint account with the litigant’s lawyers.
“This affects all constitutional rights a free press has, including the right to property. If the media is appealing an excessive judgment, why is the condition for the appeal a deposit of the same excessive amount that is being appealed against?” Star lawyer Linda Musita wrote after the Sh22 million defamation award last August.
And there isn’t much hope in appeal, at least for the Star. “Every avenue of appeal all the way to the Supreme Court already has one or more judges who have sued the newspaper for defamation,” Musita stated.
The spectre of crippling defamation awards swings over Kenya’s media houses like the sword of Damocles. We are increasingly a litigious society. Moreover, there are lawyers poring through media content with a fine comb to pick out potentially libellous material.
This certainly unleashes a chilling effect on media freedom. A quick review of past defamation rulings reveals a consistent trend of heavy fines that threaten the ability of the media to thrive.
Rising from the ashes of a devastating pandemic that saw profits plummet and journalists laid off or their salaries slashed, in addition to the extensive disruptions of the “Digital Revolution” that driven ad revenue away to social media giants, legacy media is struggling to breathe.
Add to this the risks of punitive court awards and you have a profession and industry rendered almost impotent to discharge its constitutional mandate.
A Fourth Estate operating in an environment where a judge could shut down a media house with a single multimillion-shilling defamation award is unlikely to muster the courage to report without fear or favour.
You will have timid newsrooms that only report official speeches, press releases and safe stories like road accidents and beauty pageants.
In a country where corruption is a way of life, and always viciously fights back, can citizens expect the media to investigate and report on the national disaster when the courts are ready to shut down newsrooms for an unintentional error?
The freedom of expression watchdog ARTICLE 19 Eastern Africa has observed that awarding of disproportionate damages against the media by the courts threatens sustainability of media.
We do not purport to instruct the courts on how to decide libel cases. The Judiciary is independent. We acknowledge that individuals are entitled to their good reputation. That is a constitutional guarantee. But, we think, in deciding libel cases private rights must be balanced with the need to the protect the media, which is the lifeblood of a robust democracy.
See you next week!
