Johnson Evan Gicheru v Andrew Morton & 1 other

The Court restated the classic restraint principle: it would be disinclined to disturb a trial judge's award merely because it would have given a larger sum. Reversal requires proof of a wrong principle of law or an award so extreme as to be an entirely erroneous estimate of the damage. The Court nevertheless found both limbs satisfied here because the trial judge overlooked fundamental aggravating aspects of the libel and the victim.

The trial judge failed to express her sense of the iniquity of the respondents or consider the absolute blamelessness of the victim. The respondents refused any retraction or apology, asserted the passages were not defamatory, and behaved obstructively at trial. Because the offending passages remained in the book, the libel lives on permanently. Taking aggravation into account, the awards were inadequate and based on incorrect principle.

Drawing on the Jones v Pollard checklist of compensable factors and the restitution principle in Broom v Cassel, the Court weighed the gravity of the libel, the appellant's position, the respondents' refusal to apologise, and their conduct before and during trial. Aggregating these aggravating elements, the Court fixed a single composite sum rather than separate general and exemplary awards.

The Court reviewed awards ranging from Kshs.1.5 million to Kshs.30 million and identified common features: they mostly concerned prominent political figures or high-ranking officials, the publications were largely 'gutter press', the defendants almost never defended the suits, and none had been tested on appeal. The trial judges appeared to have ignored basic fundamental principles for awarding libel damages, so the comparables carried no persuasive weight.

The trial judge had refused an injunction on the basis that the book had been in circulation since 1998 and there was no evidence sales of the offending edition continued. Although the appellant argued that admitted publication with unexpunged passages made the refusal wrong, the Court's operative orders addressed only quantum, interest and costs, leaving the injunction issue effectively overtaken by the substitution of a higher award.