The Judicial Service Commission (JSC) interview panel, in the process of selecting Kenya’s next Chief Justice, have been giving one applicant for the post, Court of Appeal Judge Alnashir Visram, a hard time over a judgment he made sixteen years ago which resulted in the largest award in damages for defamation in Kenyan legal history, Sh30 million, to former cabinet minister Nicholas Biwott.

It is difficult to ascertain whether the JSC are angry at Justice Visram over the size of the award, or because it was made to ‘Total Man’ Biwott. Either way, they’re wrong to do so and their anger is misplaced.

Dr Iain West’s Casebook and the lawsuit between Biwott and Chester Stern

In December of 2000, Biwott successfully sued the British authors, publishers and printers of a book entitled Dr Iain West’s Casebook together with two Nairobi bookshops that had distributed it.

Dr Iain West’s Casebook had in effect been written by a British journalist, Chester Stern, who at that time worked for the British tabloid newspaper The Daily Mail. The text was written in collaboration with Dr Iain West, a British pathologist who had been part of the Scotland Yard team brought in to investigate the murder of Dr Robert Ouko in February 1990.

The book “alleged Mr Biwott’s involvement in the murder” of Dr Robert Ouko.

The Kenyan booksellers agreed to an out-of-court settlement. However, Chester Stern, Dr Iain West and the British publishers and printers, who were served a summons in the UK, failed to make an appearance in court, nor did they produce a single witness, or any testimony to defend themselves.

Stern told a British newspaper that he would never apologise and had no intention of withdrawing the book.

The High Court of Kenya presided over by Justice Alnashir Visram, awarded Nicholas Biwott Sh30 million in damages, to date still the highest award for defamation made by a court in Kenya. Contrary to popular belief, the British defendants however, never paid the money awarded to Nicholas Biwott.

The Elton John Case, and how it ties in with Biwott’s lawsuit

Then, as now, at the JSC, the award was ‘criticised for being excessive’ but Justice Visram gave the reasons why it was in some respects so high in his judgment, which the members of the JSC would be wise to read.

Some of the reason for the level of the award was based on a comparative defamation case in the UK involving ‘Rock Superstar’ Elton John.

In 1996, Elton John, multi-millionaire pop performer of such songs as ‘Your song’, ‘I’m still standing’, ‘Candle in the wind’ and ‘Rocket man’, was awarded £25,000 (Sh3,325,000) in general damages and £50,000 (Sh6,650,000) in exemplary damages for an article which said he was ‘pursuing a bizarre diet’ and had a dietary disorder.

Set against the figure of nearly Sh10 million for an award to a British pop star because someone had written that he had a dietary disorder, the figure of Sh30 million for being falsely accused of killing Kenya’s Minister of Foreign Affairs, seems reasonable by comparison.

Nicholas Biwott ‘wrongfully accused’ in Robert Ouko murder case

Judge Alnashir Visram stated that an award for defamation “should vindicate the Plaintff’s [Biwott’s] reputation in the eyes of the public” and “that a plaintiff must be awarded a sum to which he can refer to convince others that he was wrongfully accused”.

Alnashir Visram went on to explain how the defendants had aggravated the situation.

“The conduct of the UK defendants since the publication has not helped matters in fact they have deliberately and arrogantly announced that they will neither apologise nor withdraw the book” and that, “They have even had the audacity to say that the offending words are true…”.

Chester Stern gets it wrong

What this means is that in a libel case, the Plaintiff, the person bringing the action, can also in effect be on trial.

Chester Stern’s book ‘Dr Iain West’s Casebook’, or, at least, certainly the chapter dealing with Dr Robert Ouko’s murder was littered with inaccuracies.

Stern wrote that Ouko had disappeared from his Koru farm on February 12, when in fact it was in the early hours of February 13. He stated that Ouko’s body was not found for three days but Scotland Yard and Kenyan Police Report reported the testimony of up to eight witnesses who confirmed that the body was initially found by a ‘herdsboy’ the same day as Dr Ouko disappeared. Even the spelling of Dr Ouko’s wife’s name was incorrect.

Stern also trotted out the two main theories given at the time for possible motives for Dr Ouko’s murder. The first, that there had been a ‘row’ between Dr Ouko, Biwott and Moi on a ‘Prayer breakfast’ visit to Washington D.C. The second, a theory built off of allegations of corruption over the Kisumu Molasses Plant project in Kisumu.

Yet by 2000, the time of the libel action, both theories and the people behind them, principally Dr Ouko’s brother Barrack Mbajah over the Washington trip theory, and the Swiss-German woman Marianne Briner-Mattern over the Kisumu Molasses Project theory, had been utterly discredited.

(For further reading on the subject of Robert Ouko’s murder, and for access to what has been established as fact, read ‘Murder of Dr Robert Ouko: what really happened‘)

If either of those witnesses – both being principle actors in shaping those now-discredited theories – and Chester Stern had faced cross-examination, which none of them ever did, their allegations would have been torn to shreds. The result of any contested libel action over the publication of Dr Iain West’s Casebook would never have been in doubt.

A successful libel action requires the plaintiff to be confident of his or her innocence and to have the evidence to support the fact. If successful it should help confirm innocence, if unsuccessful, confer guilt. For the alleged defamer the consequences of defeat should be severe.

Judge Alnashir Visram was quite right to award punitive damages against Chester Stern and the publishers of Dr Iain West’s Casebook 16 years ago. His decision should in no way be an impediment to him becoming Kenya’s next Chief Justice.