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Court of AppealDismissedCivil Appeal No. 284 of 2005

Nation Media Group Ltd & 2 others v Kamotho & 3 others (Civil Appeal 284 of 2005) [2010] KECA 360 (KLR)

Court of Appeal of Kenya
25 March 2010
4,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that media can be liable for defamation even without naming someone, if broadcasts together identify them, and it upheld large damages awards.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi against a judgment of the High Court (Ojwang, J) of 1st July 2005 in HCCC No. 368 of 2001, which awarded the four Kamotho respondents general and aggravated damages for defamation arising from broadcasts on Nation Radio and Nation TV on 18th January 2001. During the Changamka morning talk show hosted by the 3rd appellant, a caller named Maina broadcast an account of three sons of a cabinet minister driving recklessly, causing an accident at Westlands and using their father's influence to escape consequences; subsequent news bulletins identified the sons of Hon. Joseph Kamotho. The High Court found the respondents were defamed despite having been nowhere near the scene, and awarded damages ranging from Shs.1,000,000 to Shs.6,000,000 general damages plus aggravated damages. The appellants challenged identification, malice, the innuendo pleaded and the quantum of damages. The Court of Appeal, composed of Tunoi, O'Kubasu and Waki, JJA in a single judgment of the court, applied the retrial principles in Selle v Associated Motor Boat Co and the settled test for interfering with damages in Butt v Khan. It held the broadcast, taken together with the news bulletins, clearly referred to all respondents; that the words bore the pleaded natural and ordinary meaning and innuendo; and that the awards were not manifestly excessive given the wide reach of the broadcast and the appellants' failure to apologise. The appeal was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the words complained of were published falsely and maliciously
  2. 2.Whether the words referred to and were understood to refer to the respondents
  3. 3.Whether the words were defamatory of the respondents in their natural and ordinary meaning and by innuendo
  4. 4.Whether the respondents suffered damage and were entitled to the remedies sought
  5. 5.Whether the award of damages was manifestly excessive

Key legal issues

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01

Whether the broadcast identified the respondents notwithstanding that no names were given in the Changamka programme

Holding

The talk show, radio and television broadcasts taken together identified the respondents, and the broadcast founded on rumour was libellous of all of them.

Reasoning

The Court made its own evaluation of the evidence on retrial. The Changamka broadcast referred to sons of a cabinet minister and the subsequent news bulletins identified the 1st respondent by name. The sons proved they were nowhere near Westlands. The story was apparently founded on rumours and clearly referred to all respondents.

p. 7
02

Whether broadcast words defamatory in their natural and ordinary meaning and by innuendo were established

Holding

Words are to be given their natural and ordinary meaning as popularly understood, and given the respondents' standing in society, the broadcast lowered them in the perception of right-thinking people.

Reasoning

The Court accepted the respondents' submission that as the publication was in wireless form no separate evidence of meaning was needed, and that the innuendo was established because the information conveyed was that the sons had committed offences and escaped consequences through their father's position. Reputation is an integral part of the dignity of the individual.

p. 7
03

Whether the awards of general and aggravated damages were manifestly excessive

Holding

The awards were not excessive; the trial judge considered the wide reach of the broadcast, the gravity of the libel and the appellants' failure to apologise, and the appellate court will not substitute its own figure.

Reasoning

Applying the settled criteria for interfering with damages, the Court found the trial judge correctly guided. The defamatory broadcast reached many people and the appellants failed to make amends or apologise. The latitude in awarding libel damages is wide and the Court avoids substituting its own opinion for that of the trial judge.

p. 8

Legal principles established

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  • An appeal to the Court of Appeal from a High Court trial is by way of retrial; the Court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
  • 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 some material respect.
  • The elements of the tort of defamation that the claimant must prove.

Court orders

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  1. 1.The appeal is dismissed with costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
HCCC No. 368 of 2001
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court in civil matters (appeal by right against judgment and decree in HCCC No. 368 of 2001)

Relief refused

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Setting aside or reduction of the general and aggravated damages awarded by the High Court

The Court found no wrong principle and the awards not manifestly excessive

p. 8

Appellants' contention that the words did not identify the respondents

The broadcast taken together identified the respondents

p. 7

Costs

The appeal was dismissed with costs to the respondents

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.

On our independent analysis of the evidence tendered in the trial court we have no hesitation whatsoever in holding that the words broadcast by the appellants were libelous of the respondents, untrue in substance and did clearly refer to all the respondents.
p. 7Libel and identification of the plaintiffs
the first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood.
p. 7Meaning of defamatory words
Obviously, reputation is an integral and important part of the dignity of the individual and once besmirched by an unfounded allegation a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation.
p. 7Nature of reputation and damages
For the reasons given above we order that this appeal be and is hereby dismissed with costs.
p. 8Final orders - dismissal of the appeal

Issues in the judgment

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minor

Grounds of appeal numbering is inconsistent in the judgment itself: 'position of the 2nd appellant, grounds 10 and 11' overlaps with 'whether the award of damages was manifestly excessive ... grounds 11 to 15'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Nation Media Group Ltd & 2 others v Kamotho & 3 others (Civil Appeal 284 of 2005) [2010] KECA 360 (KLR)", Case Analysis (2010). Civil Appeal No. 284 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/360/eng@2010-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.