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Court reverses Midiwo’s Sh5m defamation award against NTV

The Court of Appeal has reversed Sh5 million compensation awarded to former Gem MP Jakoyo Midiwo who complained that NTV had broadcast defamatory statements against him 14 years ago.

According to the appellate court, the former MP overstretched the meaning of the words he claimed were defamatory against him.

“With utmost respect, the meaning and interpretation given to the word ‘lady’ is out of place and context.  In our view, the respondent supported extraneous matters into a plain and ordinary word and gave it, his own meaning and interpretation. We think, with profound respect to the trial learned Judge, the meaning and interpretation of the words complained of were overstretched,” Justices William Ouko, Mohammed Warsame and Otieno-Odek said.

PUBLISHED BY NTV

Mr Midiwo complained that the words published by NTV on February 13, 2004 injured his person and character as a family man.

He complained that the words were actuated by malice and the publication had exposed him to considerable stress and embarrassment.

Whereas NTV admitted publishing and broadcast the information, the broadcaster denied the meaning of the words ascribed to them by Mr Midiwo.

Through lawyer Guto Mogere, NMG maintained that the words and accompanying images were true in substance and consisted of expression of opinion and fair comment.

Justice Abida Ali-Aroni had awarded Mr Midiwo Sh5 million.

But Mr Mogere faulted the judge for failing to distinguish between innuendo and the ordinary meaning of the words in the publication and for failing to consider its legal implications. He also said the award of damages was excessive.

He maintained that the publication was based on actual events that happened on the said day and it was not driven by malice.

COMMOTION

Mr Charles Billy Oduor, the manager of Mamba Hotel, agreed that there was a commotion between Mr Midiwo and a group of rowdy youth who were eventually thrown out of the hotel.

Mr Midiwo himself corroborated the claims when he reported the incident at the police station. NMG said there was evidence of commotion, brawl and that it was out of this event that the publication was made

The judges said it is common factor that Mr Midiwo was, at the time an MP for Gem Constituency and that he was at Mamba Hotel in the company of his bodyguards and that there was some confrontation arising from some four rowdy men. It was on the night of Valentine’s Day, the judges observed.

“In view of this evidence, nothing turns on the complaint that what took place was no brawl. It is also a matter of fact that those who confronted the respondent were shouting “Koinange, Koinange Street or K Street,” they said.

The judges added that it was absurd to claim that by making reference to his companion as a “lady”, there was insinuation that he was with a prostitute.

“The term lady has for decades been used to mean a woman of superior social position; a woman of refined manners; a term used in a courteous reference to a decent woman. The respondent’s interpretation of the word was a stretched connotation out of its natural and ordinary meaning,” the court said.

The Court said nowhere in the publication was it suggested that the lady was not Mr Midiwo’s wife, or was a prostitute.

“Those were words from the respondent’s own mouth.  By referring to the lady as a ‘prostitute’ the respondent was unfair to himself and to the appellant,” the court said.

And being an MP then, the court said, a national leader and a public figure, Mr Midiwo was subject to public scrutiny on higher plane or limits than ordinary persons.

The court added that it was for Mr Midiwo to prove his claim on a balance of probabilities and the burden did not depend on NMG’s case.