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Court of AppealAllowedCivil Appeal 81 of 2009

AZIZ KASSIM LAKHA v STANDARD LIMITED T/A EAST AFRICAN STANDARD [2009] KECA 426 (KLR)

Court of Appeal of Kenya
16 October 2009
2,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against the quantum of damages awarded by Khaminwa, J in a libel suit. The respondent newspaper had published an article headed 'Coast Traders charged with stealing power' concerning the appellant, a prominent Mombasa businessman, although the charge under section 95(1)(b) of the Electric Power Act 1997 involved no offence of stealing power. Liability was not in dispute on appeal; only quantum was contested. The trial court had awarded Kshs.500,000. The appellant argued the award was manifestly low and founded on wrong principles, chiefly that the trial Judge failed to consider the respondent's conduct before, during and after trial (including its stubborn refusal to apologise and its false denial that the appellant was named), the gravity and circulation of the libel, and the appellant's elevated status. The court restated the narrow appellate latitude on damages, drawing on Rook v Fairrie, Tanganyika Transport v Ebrahim Nooray and Butt v Kiyan, but found the trial Judge had acted on wrong principles by omitting key compensable factors from the Jones v Pollard checklist, particularly vindication and the defendant's conduct. Applying the restitution principle from Broom v Cassel as adopted in Johnson Evan Gicheru v Andrew Morton, the court held the award could not remove the sting of the libel against a plaintiff of such standing. It allowed the appeal, set aside Kshs.500,000, and substituted Kshs.2,000,000 plus costs of the appeal and the suit below. The decision binds subordinate courts and High Courts on the appellate standard for disturbing libel damages and on the compensable factors checklist.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial Judge acted on wrong principles in assessing damages for libel
  2. 2.Whether the award of Kshs.500,000 was manifestly low and inadequate
  3. 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

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01

Limits of appellate interference with an award of damages

Holding

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.

Reasoning

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.

p. 3
02

Relevant factors in assessing libel damages

Holding

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.

Reasoning

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.

p. 5
03

Purpose of damages in defamation

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Award of Kshs.500,000 set aside
  3. 3.Substituted award of Kshs.2,000,000 in favour of the appellant
  4. 4.Costs of the appeal and of the suit below awarded to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
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

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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.
p. 5Final orders - substitution of damages award
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.
p. 3Appellate latitude on damages
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.
p. 4Defendant's conduct as a compensable factor
Compensation is here a solatium rather than a monetary recompense for harm measurable in money.
p. 5Dual purpose of libel damages

Issues in the judgment

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minor

The judgment inconsistently genders the trial Judge, using both 'his' and 'she/she/her' in successive passages.

minor

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.

minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.