AZIZ KASSIM LAKHA v STANDARD LIMITED T/A EAST AFRICAN STANDARD [2009] KECA 426 (KLR)
The bottom line
#Kenya's Court of Appeal quadrupled a libel award to Kshs.2 million, ruling that a defendant's conduct and refusal to apologise must shape defamation damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Judge acted on wrong principles in assessing damages for libel
- 2.Whether the award of Kshs.500,000 was manifestly low and inadequate
- 3.Whether the trial Judge failed to consider the conduct of the respondent before and after trial, and the status of the appellant, in assessing damages
Key legal issues
#Limits of appellate interference with an award of damages
An appellate court's latitude is narrow; it must not substitute its own opinion for that of the trial judge unless the award is entirely erroneous or based on wrong principles or misapprehension of evidence.
The court adopted the principle in Rook v Fairrie, endorsed in Tanganyika Transport Co. Ltd v Ebrahim Nooray and restated in Butt v Kiyan: the appellate court intervenes only where the judge proceeded on wrong principles or misapprehended the evidence, producing an inordinately high or low figure. It nevertheless found such wrong principles here.
Relevant factors in assessing libel damages
The trial court must consider the gravity and circulation of the libel, the defendant's conduct before and after trial including failure to apologise, the plaintiff's status, and vindication; omission of these factors is acting on wrong principles.
Applying the checklist in Jones v Pollard and Uren v John Fairfax & Sons, the court found the trial Judge did not take into account, or gave insufficient weight to, the objective gravity and circulation of the libel, the respondent's stubborn refusal to apologise, the subjective effect on the appellant, and vindication. That omission justified intervention despite the general deference owed to trial judges.
Purpose of damages in defamation
Damages for defamation operate as a vindication of the plaintiff to the public and as consolation for the wrong, and must be sufficient to convince a bystander of the baselessness of the charges.
Relying on Broom v Cassel as adopted in Johnson Evan Gicheru v Andrew Morton, the court held that restitution in reputational cases has a subjective element: the award must be a sum capable of removing the sting of the libel, particularly for a plaintiff of the appellant's standing. The award of Kshs.500,000 was not capable of doing so, warranting substitution of Kshs.2,000,000.
Legal principles established
#- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect.
- In assessing damages for libel the trial court is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict is given, including conduct before action, after action and during trial.
- In assessing libel damages the court must apply the compensable factors checklist: gravity, circulation, subjective effect, defendant's conduct, apology, mitigation, and vindication of the plaintiff's reputation past and future.
Court orders
#- 1.Appeal allowed
- 2.Award of Kshs.500,000 set aside
- 3.Substituted award of Kshs.2,000,000 in favour of the appellant
- 4.Costs of the appeal and of the suit below awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 436 of 2002
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal as of right against quantum of damages in a civil suit)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
All in all we allow the appeal and hereby set aside the award of Ksh.500,000 given on 2nd November 2007 and substitute thereof an award of Kshs.2,000,000 (2 million) plus costs of the appeal and the suit below.
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
In an action of libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time libel was published down to the time the verdict is given.
Compensation is here a solatium rather than a monetary recompense for harm measurable in money.
Issues in the judgment
#The judgment inconsistently genders the trial Judge, using both 'his' and 'she/she/her' in successive passages.
The judgment refers to the case 'URN v JOHN FAIFAX & SONS PTY LTD' but shortly after calls it 'the OREN case', an apparent internal inconsistency in the case name.
The case name 'FRAUD v GRAHAM' at 24 QBD 53 appears to be a misrendering of Fraser v Graham; as printed it conflicts with the standard citation format used elsewhere.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Raphael Lukale v Elizabeth Mayabi & another [2018] KECA 668 (KLR)[2018] KECA 668 (KLR)20 Apr 2018applied
Cite this brief
#Cite this brief
Caselaw, "AZIZ KASSIM LAKHA v STANDARD LIMITED T/A EAST AFRICAN STANDARD [2009] KECA 426 (KLR)", Case Analysis (2009). Civil Appeal 81 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/426/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.