Brookside: Case against Nyali MP is on infringed rights, not defamation

Nyali MP Mohamed Ali. [Gideon Maundu, Standard]

Milk processor Brookside has told the court that filing a defamation case against Nyali MP Mohamed Ali would not offer a remedy on the rights it claims were infringed by the legislator’s statement that it has been exploiting farmers and consumers.

While urging the court to dismiss Ali’s objection, Brookside’s lawyer Desterio Oyatsi asserted that the law on defamation deals with reputation while the case before court was on the rights to do business and not to be subjected to public resentment.

“The law of defamation does not contain sufficient remedies for vilification. The law of defamation is an enabling statute on the protection of reputation and human dignity which are different rights specifically are provided in Article 28 and reputation is protected under Article 33 (3). Which is a different thing from vilification. Defamation on its own does not provide sufficient remedies of vilification. On those grounds, I urge that this preliminary objection be dismissed with costs,” said Oyatsi.

He also argued that the issue of whether Brookside is a natural person who can claim rights under the constitution cannot be dealt with at a preliminary stage.

In response, Ali’s lawyers Adrian Kamotho and Elias Mutuma argued that the constitutional court had no powers to hear the case. According to the two lawyers, Brookside has not disclosed its directors to determine whether they enjoy the rights provided by Kenyans. Mutuma told Justice Hedwig Ong’undi that there was no evidence that Brookside’s right were infringed.

“The petitioner has failed to demonstrate which right has been violated to warrant its day in court. They were under that obligation and has not done that. They argue that their case is anchored on Article 33 which is on freedom of expression. It is not true that the law governing defamation does not contain enough remedies,” he argued.

On the other hand, Kamotho argued that for Brookside to claim that its constitutional rights were infringed, it has to show that it is a human being.

“What is the gender of Brookside, what is the race, the colour, the marital status? Can the petitioner be discriminated based on pregnancy? The drafters of the Constitution did not envision that petitions brought by corporates,” said Kamotho.

Article 20

In the case, Brookside claims that on March 3, Ali at a public rally in Nyeri said the firm buys milk at Sh20, boils it and sells it to suppliers at Sh120. This statement, according to the milk processor, was false and a violation of its rights under Article 20, Article 33(2)(d), and Article 27 of the Constitution.

According to the firm, Ali claimed that the president comes and buys milk at Sh20, boils it, and sells it back at Sh120.

“The said words were understood in the public to refer to the petitioner, its business practices, and its products. In particular, the petitioner represented to the public by implication or otherwise that the petitioner carried on its business unlawfully or fraudulently by exploiting and underpaying farmers who supply milk to it as its raw material,” said Brookside’s company secretary Jacob Ombongi

According to Brookside, its license obligates it to uphold the rights of persons it purchases raw products from and consumers of its products.

At the same time, it argues that it has a task of ensuring that the products sold under its name meet the health, safety, and economic requirements set by law.

“In relation to the milk products purchased from the farmers or its suppliers as raw products, the petitioner is also obligated under the constitution to protect the suppliers’ interests and not subject the farmers or suppliers to exploitation or unfair treatment,” Brookside says in its court papers. It states that Ali was inciting the public to cause economic harm or loss.