Former Gem Mp has lost a lawsuit he filed against Nation Media Group (NMG) alleging that an article published by Sunday Nation 15 years ago defamed him.
Three judges of the appellate court ruled that Mr Midiwo failed to discharge the legal and evidential burden on this issue. They said the former legislator did not give evidence to prove that the article, published on December 6, 2003, referred to and concerned him.
All that the former MP did, the judges added, was to refer to broadcast by a third party, which referred him by name in their broadcast.
“In our considered opinion, the trial court did not err in finding that the respondents were neither accountable nor liable for publications, news bulletin or actions of other media houses. If another media house defamed the appellant by expressly referring to and or mentioning him by name, the appellant is at liberty to pursue any relief against such media house,” the judges said.
Justices William Ouko, Mohammed Warsame and Otieno-Odek said the trial judge did not err in finding that the publication made about ten days later, on December 16, after MPs called a press conference, was not defamatory.
Retired Justice John Mwera had dismissed the case, forcing Midiwo to appeal.
He said the article excited passion and debate on the article as an immediate matter of national interest. He maintained that the article was false and published with malice.
On their part, NMG admitted publishing the article but they were not malicious. The publisher added that they neither named nor otherwise linked Mr Midiwo to the article and they are not responsible for the investigation or editorial policy of other media houses.
Further, NMG said the article published was not false but a fair comment on a matter of general public and national importance.
For an action in defamation to succeed, NMG submitted, the complained publication should either expressly or by innuendo refer to the person complaining.
“Is there any material in the article that implicitly or indirectly identify or refer to the appellant? We do not think so,” the court ruled.