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Court orders Alfred Mutua to pay ‘Nation’ Sh12m


The Court of Appeal has ordered Machakos Governor Alfred Mutua to pay the Nation Media Group Sh12 million.

In what heralds a triumph for the media industry, the appellate court overturned a Sh4.5 million defamation compensation the High Court had awarded Dr Mutua in 2011 over an article carried by one of Nation’s publications.

The governor had sued over a story published in February 2008 as Kenya was rocked by post-election violence. Then, Dr Mutua served as the Government Spokesman and while in Uganda, he was interviewed by a radio station in Kampala over the Kenyan situation.

The story was published by the defunct Daily Metro, a newspaper under Nation Media Group stable, on February 11, 2008.

To the editors, being the government spokesperson, Dr Mutua’s interview and whatever he said or did was construed as the government position.

NMG, through lawyer Guto Mogere, said the words by Dr Mutua were undoubtedly inflammatory, and correctly characterized them as reckless, careless or dangerous as they were capable of inflaming passions and adversely affecting the peace process that was then going on then.

DEFAMATORY

Some of the comments he made during the talk show in Uganda, however, appeared inconsistent with what was later expressed by President Mwai Kibaki, and in the judges view, there was justification in the comment and the question posed by Nation as to who Dr Mutua spoke for.

“All in all, there was therefore a basis of fact, in our view, for the comments by the appellants (Nation Media). In other words, there were facts contained in or referred to in the publication complained of on the basis of which the comments were made,” appellate judges Roselyn Nambuye, William Ouko and Gatembu Kairu ruled on November 17.

The Judges faulted the decision by High Court Judge George Dulu stating that he failed to consider the legal test on what constitutes fair comment and in failing to uphold the defence of fair comment advanced by Nation.

“We therefore allow the appeal and hereby set aside the judgment of the High Court delivered on 18th March 2011. We substitute the judgment of the High Court with an order dismissing the respondent’s suit with costs to the appellants. The appellants shall also have the costs of this appeal,” the Judges said.

Dr Mutua had complained that the headline and the story published in the article was defamatory of his character and professional standing.

FAIR COMMENT

He said that the article was published in bad faith, is false and malicious.

He complained that the article made him appear like he travelled to Uganda and made a mockery of mediation talks in Kenya and that he perpetually engages in cheap, careless talk and is of loose tongue.

The Nation, however, maintained that the article was published in the public interest at a time when Kenya was in a crisis due to the post 2007 General Elections skirmishes and it was true and consisted of what Dr Mutua stated during the talk show.

In his judgment, Justice Dulu ruled that although the Nation raised issues of truth and fair comment in its defence, they were bound to prove the same but did not tender evidence to prove it.

In the appeal, Mr Mogere submitted that the article was a commentary on certain aspects of an interview that Dr Mutua gave to the radio station and that the words “dangerous talk” and “add fuel to the fire in his trade mark style” which the Judge singled out from the article as being defamatory, were no more than a fair comment on the statements he made.

He produced transcripts of the interview and pointed out the statements made by Dr Mutua to justify the commentary.