Piece by: ANNETTE WAMBULWA

23 February 2023

• Judge Maina said if the matter was before her, she could have done things differently.

The high court has declined to set aside the sentence that was issued to a TUKO editor who published a story relating to an NYS case that was alleged to defame a witness.

Justice Esther Maina has this morning ruled that Magistrate Eunice Nyutu was right in law to punish the editor.

“This court has considered this matter very carefully and it has come to the conclusion that the trial magistrate has jurisdiction to punish for contempt," she ruled

However, the court said Nyutu went overboard in that instead of imposing a Sh50,000 fine or one-month imprisonment, she gave six months.

Judge Maina said if the matter was before her, she could have done things differently.

“But we all know that an appellate court cannot reverse a decision of the trial court merely on the ground that it would have dealt with the matter differently,” she added

The application by TUKO sought to revise an order of the trial magistrate in which she punished their editor for certain conduct involving a witness in the trial of the NYS case

Justice Maina further said that when she looked at the proceedings, she realized that the magistrate was not actually punishing the editor for defamation of a witness but she was trying to preserve the dignity of the proceedings before her.

“She was entitled to do that under section 10 of the magistrate’s court act,” she ruled

The court substituted the six-month jail term with one month but refused to come to the conclusion that the trial magistrate abused her position, saying that would go against section 10 of the magistrate court act.

The editor had already paid the fine of Sh 50,000 to the court to secure his release.