Jimi Masege v Kenya Airways Limited
The bottom line
#Kenya's Court of Appeal upheld Kenya Airways' dismissal of an employee but confirmed the airline was liable for circulating a defamatory memo about him.
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 termination of Masege's employment was unlawful and wrongful
- 2.Whether Masege was entitled to rebated tickets after termination of his employment
- 3.Whether the memo or notice in question was defamatory
- 4.Whether KQ was liable in defamation
- 5.What damages, if any, were payable
Key legal issues
#Whether the termination of employment was lawful and on disciplinary grounds
The termination was lawful and on disciplinary grounds, being predicated on incidents of indiscipline and warning letters under the contract.
The letter of termination cited various incidents of indiscipline and followed warning letters issued in terms of the contract. Payment of terminal benefits did not convert a disciplinary termination into a normal one. The Court agreed with the trial judge's finding and dismissed that ground of appeal.
Whether rebated tickets were a litigable entitlement
No; staff rebates are a privilege under clause 2 paragraph (1) of the Staff Travel Rules, and clause 13 paragraph 6 does not detract from that definition.
The specific rule defining staff rebates as concessionary and a privilege governs; the general provision on rebated entitlement upon termination on grounds other than disciplinary does not override it. Since termination was on disciplinary grounds, no entitlement arose.
Whether KQ was liable for publication of the defamatory memo
Yes; KQ's letterheads, notice board, endorsement for circulation and copying to senior officers made it liable for publication despite not being the author.
KQ offered no evidence refuting publication or authorship. The memo was on KQ letterheads, displayed on its notice board, endorsed by a KQ officer for wider circulation and copied to four senior officers. On a balance of probability the trial court was right to find publication and defamation.
Whether the award of Shs.150,000 in libel damages should be enhanced or set aside
Neither; applying Jones v Pollard guidelines and the whole conduct of the defendant, the award was neither inordinately high nor low.
The Court applied the Jones v Pollard guidelines - gravity, circulation, effect on plaintiff, mitigation and vindication - and noted mitigating factors: limited medium (notice board), limited audience, and KQ's prompt withdrawal of the memo. There was no error in principle warranting interference.
Legal principles established
#- An appellate court will be slow to interfere with findings of fact of a trial court unless based on no evidence, a misapprehension of the evidence, or wrong principles.
- General damages are not recoverable for breach of contract.
- An employer who gives out space and allows a defamatory document to be published on its premises and letterheads, and endorses its circulation, is liable for publication even if not the author.
- An appellate court will not disturb a trial judge's award of general damages unless the judge acted on a wrong principle or the award is so high or low as to be an entirely erroneous estimate.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The cross appeal is dismissed in its entirety
- 3.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1165 of 1998
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (not expressly cited in the judgment)
Relief refused
#Rebated tickets for the appellant and his family for past years and the future
Termination was on disciplinary grounds and staff rebates are a privilege, not a litigable entitlement
Enhancement of defamation damages from Shs.150,000 to Shs.1,500,000
Damages were neither inordinately high nor low and there was no error in principle
KQ's cross-appeal seeking setting aside of damages and dismissal of the entire suit
KQ published the memo and the memo was defamatory; liability upheld
Costs
Each party shall bear its own costs.
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 the appeal is for dismissal in its entirety and we so order. The cross appeal is also for dismissal in its entirety and we so order. Each party shall bear its own costs.
this Court will be slow to interfere with findings of fact made by the superior court unless the findings are based on no evidence, or on a misapprehension of the evidence, or the Judge is shown demonstrably to have acted on wrong principles
in law, there can be no general damages for breach of contract
giving out space and allowing the document to be published and read by third parties, even when authorship of it was not KQ’s, was no different from publishing it directly
In an action for 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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jimi Masege v Kenya Airways Limited", Case Analysis (2010). Civil Appeal No. 63 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/479/eng@2010-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.