Former anti-corruption boss turned whistle blower, John Githongo, had immunity from prosecution regarding his role in unearthing corruption in the government.
So why did the court rule he pays Sh27 million to former Cabinet Minister Chris Murungaru for maliciously linking him to graft?
Mr Githongo had told the court he that as the Permanent Secretary in charge of Governance and Ethics, he authored and forwarded the exposé to President Mwai Kibaki and to the director of the anti-corruption commission in 2005. He argued before High Court Judge Joseph Sergon that where a private citizen makes a report to the anti-corruption commission or to the president as an informer, one is immune to demands for damages and that the dossier cannot, therefore, form the basis of a defamation suit against him.
Justice Sergon agreed with him. But the judge said there was evidence that Mr Githongo caused the letter he had sent to the President and anti-graft body to be published by media houses, both in print and electronic and also he personally gave his story to Michela Wrong and even read the manuscript of the book titled It’s Our Turn to Eat, and approved it for publication.
Mr Githongo further republished the offensive publication when he granted interviews to various television stations.
In the circumstances, the defences of qualified privilege and public interest could have only been available to him had he restricted the dossier’s dissemination to the President and the anti-corruption commission director.
The court found that the publication depicted Mr Murungaru as one who engaged in corruption, lacked integrity and was dishonest. It also portrayed him as the mastermind of the, Anglo-Leasing type of contracts. But Mr Githongo presented no evidence linking the former minister to corruption. Therefore, in the absence of evidence to establish the truthfulness or justification of the content of the dossier means that the publication is and was defamatory to Mr Murungaru
In particular, Mr Githongo had admitted that he was not aware of Mr Murungaru being charged with any corruption-related cases; he was not aware of any monies being traced to Mr Murungaru’s accounts; and that he had told President Kibaki that Mr Murungaru’s colleagues told him that the minister was corrupt, but they gave him no evidence.
“In light of Mr Githongo’s testimony, it is clear that there was no factual basis to assert that Mr Murungaru was engaged in corruption.“It cannot be stated by any stretch of imagination that Mr Githongo’s job description as a permanent secretary mandated him to defame Mr Murungaru. Therefore, he is personally liable for his actions,” Mr Sergon ruled in a verdict dated May 2, 2019.
The judge also said there was evidence that as a result of the publication, Mr Murungaru’s supporters, business associates and friends lost confidence and faith in him.