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LUTTA, J.A.
[1] I have had the advantage of reading in draft the judgment of the learned
Acting President with which I am in substantial agreement and I would only
add a few words. Mr. Haffirdh Shamte, an employee of the appellant at the
material time was sent on 30th January, 1969 to report on an accident on the
Limuru Road. According to his evidence he went with a photo¬grapher to the
scene of the accident at about 9 a.m. and after taking pictures of the
respondent's car, he telephoned Parklands Police Station to inquire if the
police had any information about the accident. He was told to direct his
enquiries to the Traffic Headquarters in the city; he tried to contact a Mr.
Shaffi, the information officer at the Head¬quarters but did not succeed.
[2] However, a few minutes before 4 p.m. he spoke to Mr. Shaffi on the
telephone and was given certain information. He also made enquiries at the
Aga Khan Hospital and obtained certain information there from. He then
submitted his report to the Editor. On the following day, that is, 31st
January, 1969, there appeared in the issue of the East African Standard on
page seven, the caption, which is the subject of complaint. Mr. Shamte
agreed that the caption was substantially a reproduction of his report. In
his judgment the learned judge found that the caption was incorrect in the
following respects:-
[3] As the accident happened soon after midnight the police could not have
been mystified about it at 2 a.m., or at all really because the car must
have been seen by Assistant Inspector Charles soon after the plaint. It left
the scene. The two of them must have met at the police station before, if
only minutes before 12.59 a.m.
[4] The police discovered the car much earlier than 2 a.m.
[5] The plaintiff received treatment at Aga Khan Hospital where he was
registered as a patient. True he was not actually admitted into hospital but
this only emphasizes the technically half truthful statement.
[6] A report was made to police.
[7] The evidence of the plaintiff, Robert Kangethe and the entry made by the
police officer leaves no room for doubt that the car crashed into an
electric pole."
[8] According to Mr. Shamte's evidence it seems that he had almost the whole
of the working day within which to ascertain or obtain the correct
information about the accident. He made inadequate attempt to check the
facts and I agree with the learned judge that the report was recklessly
prepared on incorrect information, and the appellant must bear
responsibility for the consequences. However, I do not question the right of
a newspaper in the public interest to describe or comment on any public
occurrence as long as that is done fairly and accurately. I think it is
clear, and indeed I understood Mr. Malik not to dispute it, that the words
in the report are not per se defamatory of the respondent. Mr. Malik
submitted that once the car was identified as belonging to the respondent,
the caption became libellous, that is, the caption amounted to an innuendo
which was defamatory of the respondent.
[9] The principal question which arises is this, what is the meaning
ascribed to the caption by the innuendo? In other words, does the caption
under the circumstances amount to an innuendo disparaging to the
respondent’s character? Paragraph 5 of the plaint alleges that the caption
meant and was understood to mean that the respondent "had surreptitiously
withdrawn himself from the scene of the accident to evade detection or to
conceal some clandestine matter that the plaintiff did not report the same
to the police which is a criminal offence…"Mr. Hunter urged that no meaning
can be attached to the caption other than a reference to the state of
affairs at the material time. He submitted that a reasonable reader knowing
the circumstances would not think that the respondent was hiding something
or hiding from the police or drunk. With respect I cannot agree. I think the
impression which would be created in the minds of reasonable persons knowing
the circumstances would be that there was something discreditable about the
respondent's conduct. The innuendo was disparaging to the respondent's
character.
[10] The caption imputed the commission of a crime by the respondent even
though he was not required to report the accident under section 73 of the
Traffic Act Cap. 403. In my view where the words are reasonably capable of
being understood as imputing the commission of a crime by a person and are
so understood by reason¬able persons, those words are defamatory of that
person notwithstanding the latter in law not having committed an offence. In
my view the caption was likely to be understood in a libellous sense by
reasonable persons who knew the circumstances and it was in fact libellous
of the respondent. For these reasons I would dismiss grounds l and 2 of the
appeal. With regard to ground 3 of appeal, I agree with the learned Acting
President that the award of shs. 24,000/= by the learned judge was excessive
for the reason that the publication of the libel was limited to very few
people; the number of persons to whom it was published was very small -
about six in all. There was no evidence that it was published to the readers
of the newspaper at large.
[11] In the circumstances, the sum of shs. 8,000/= would be reasonable to
compensate the respondent for the injury suffered as a consequence of the
libel. I agree with the order proposed by the learned Acting President. |
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