On June 14th 2016, Justice Mbogholi Msagha sentenced Jackline Okuta and Jackson Njeru to three months imprisonment or sh500,000 fine for failing to abide by a court’s restraining order against mentioning lawyer Cecil Miller on online platforms. The order, made on 12th April 2016 restraint them, their agents or servants from posting on Facebook or any other media platform including making general comments.
But the Judge noted that despite this court order, Jackline and Jackson
“caused to be posted and comments made on Facebook page Buyer Beware”
by various individuals.
The case came about after Cecil Miller sued Jackline Okuta on seven criminal grounds in case no. 992 of 2012. She was then convicted on all counts and sent to jail or pay fine of sh140,000 on March 31st 2016. However, Jackson fundraised for her on Buyer Beware and the amount was paid upon which she was released.
It is this criminal case, which was a private matter between Jackline and Miller than got Jackson entangled. In her attempt to seek public sympathy for her case having accused Miller of intimidation and abuse of court process, she got Jackson to help her by talking about the alleged intimidation and abuse of office through social media platforms.
Various alleged defamatory messages were made against Miller on Buyer Beware Facebook group that caused him to seek recourse to court. Miller was informed by his law firm’s partner and head of litigation Peter Wena that he was called
“corrupt, a wife beater and generally dishonest person”,
reads an affidavit signed by Miller to support his case.
Civil case 111 of 2016 was then filed. First Miller sued them for misuse of licensed telecommunications system which was a crime under section 29 of the Kenya Information and Communications (Amendment) Act 2013. But since it was declared unconstitutional by Justice Mumbi Ngugi, the lawyer changed to section 194 of the penal code.
The section reads
“Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.”
Jackson Njeru is an administrator of the Facebook group while Jackline Okuta is a member and contributor of the group. In the comments touching on Miller, Ms. Okuta had been mentioned severally. It is against these comments that the two found themselves as guests of the state.
In the case, Jackline argued that she is just a member of the group and she has no control of what is posted. She however said that after the court order was given, she attempted to stop members from commenting on the case. But she did not give specific instances and dates she advised the group members.
On his part, Jackson denied posting anything concerning the lawyer. He added that he did not know the persons who made the posts on the group. He therefore felt he was not in breach of the court order. But when further probed on some postings with a name Nyako Maber, he confirmed this was in reference to Jackline Okuta.
Mr. Njeru further made postings on the group concerning a criminal case no 672 of 2014 which is pending before the Principal Magistrate Court when the two are jointly charged. After the posts were made, several comments were made.
The contempt of court ruling cites this instances as where it went wrong for the two. It says
“he did not post any caution to members restraining them from making any postings despite the fact that he is the administrator. He had not attempted to shut down the post to avoid the said postings.”
In making the ruling, Judge Mbogholi says
“I expected the two defendants to either purge the contempt or offer an apology. Instead a denial was registered.”
The judge says that the two knowingly read and watched the postings by their members. It is immaterial whether or not they knew those members. They both had powers to caution the members but they did not. They also had the power to bring down the platform but they did not. They allowed more comments to be made without due regard to the court orders and the rights of Miler.
In this regard, he ruled
“the two aided and abated the breach of the court order. They must therefore be punished for that breach.”
Ms. Okuta was able to raise the amount after three days and was released but Jackson has yet to secure the amount and is currently serving the jail term.