Josphat Nanok awarded Ksh.2 million for defamation

In a judgment delivered by Chief Magistrate Thomas Nzyoki, the court found that an article published on August 4, 2020, falsely portrayed Nanok as supporting the controversial Third Generation Revenue Allocation Formula by attributing to him the statement: "I support this formula because it will foster development since we will be given more money."

Nanok, through lawyer Phillip Nyachoti, told the court that he had, in fact, opposed the proposed revenue-sharing formula because it would have reduced Turkana County's allocation by about Ksh.324 million.

He argued that the publication falsely depicted him as greedy, deceitful and ignorant of the revenue formula, thereby damaging his reputation while serving as Governor of Turkana County.

Nation Media Group admitted publishing the article but denied it was defamatory. The media house argued that the publication amounted to fair comment on a matter of public interest and was protected by qualified privilege.

It also relied on a clarification and apology published two days later, acknowledging that Nanok had been wrongly identified as supporting the formula and apologising for the error.

However, Chief Magistrate Nzyoki held that the apology amounted to an admission that the publication was false. The court further found that Nation Media failed to verify Nanok's position before publication and did not seek his comments, a failure that justified an inference of malice.

The magistrate ruled that an ordinary reader would understand the article to mean that Nanok supported the revenue-sharing formula for personal gain, was deceitful about his position and lacked understanding of the formula. Those meanings, the court said, were defamatory and lowered his reputation in the eyes of right-thinking members of society.

While Nanok had sought Ksh.10 million in general damages and another Ksh.10 million in exemplary damages, the court found the amounts excessive. In assessing damages, the court considered Nanok's public standing, the nationwide circulation of the publication and the fact that Nation Media had issued an apology shortly after the story was published.

The court consequently awarded Nanok Ksh.2 million in general damages but declined to grant exemplary damages.

The magistrate also rejected Nanok's request for a permanent injunction restraining future defamatory publications, holding that any future defamatory publication would constitute a separate cause of action. The court further found that the apology already published was sufficient, making a fresh order for an apology unnecessary.

Judgment was entered in favour of Nanok for Ksh.2 million in general damages together with interest from the date of judgment, costs of the suit and a 30-day stay of execution.