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Court of AppealPartially AllowedCivil Appeal No. 115 of 2003

The Standard Limited v G.N. Kagia t/a Kagia & Company Advocates

Court of Appeal of Kenya
24 September 2010
3,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut a newspaper's libel payout from Kshs.6 million to Kshs.3 million, but confirmed reckless publishing still attracts punitive damages.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Tunoi, Ole Keiwua and Nyamu, JJA) heard The Standard Limited's appeal against a High Court libel award of Kshs.5,000,000 general damages and Kshs.1,000,000 exemplary damages in favour of advocate G.N. Kagia, arising from a December 1999 'Big Issue' article alleging misappropriation of insurance compensation awards by his firm. At the hearing on 8th July 2010, the appellant abandoned all grounds on liability, conceding liability, and confined the appeal to quantum. The Court restated the appellate standard from Rock v Fairrie, Tanganyika Transport Co Ltd v Ebrahim Nooray and Butt v Kiyan: an appellate court will not disturb a damages award unless it is inordinately high or low or the judge proceeded on wrong principles. It adopted Praed v Graham on the defendant's whole conduct, and Uren v John Fairfax & Sons on damages as vindication and consolation. The Court added two principles of its own: recklessness or negligent failure to verify a libellous story aggravates damages, and awards should deter publishers, since personal rights should never be sacrificed at the altar of profiteering. Applying John v MGM Ltd and Manson v Associated Newspapers Ltd, it upheld exemplary damages because the newspaper could simply have telephoned the advocates or insurers to verify. Finding the total award excessive against comparables (advocate awards of 1-2 million, and the Gicheru award of 6 million distinguished on standing), the Court allowed the appeal in part, set aside the judgment below, and substituted a composite award of Kshs.3 million, with costs of the appeal and the suit below and interest at Court rate from 14th March 2003.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal is entitled to interfere with the trial court's award of damages
  2. 2.Whether the general damages award of Kshs.5,000,000 was excessive
  3. 3.Whether exemplary damages of Kshs.1,000,000 were properly awarded and supported by evidence
  4. 4.Whether the respondent failed to mitigate his loss by declining an offer of amends

Key legal issues

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01

Appellate latitude on libel damages

Holding

The latitude in awarding libel damages is very wide; the appellate court must not substitute its own opinion for the judge's award.

Reasoning

The Court adopted Rock v Fairrie as endorsed in Tanganyika Transport Co Ltd v Ebrahim Nooray and restated in Butt v Kiyan: interference is warranted only where the award is inordinately high or low, or the judge proceeded on wrong principles or misapprehended the evidence materially.

p. 4
02

Exemplary damages for reckless publication

Holding

Exemplary damages were properly awarded because the newspaper could easily have verified the story but published recklessly.

Reasoning

Applying John v MGM Ltd and Manson v Associated Newspapers Ltd, the Court held that a newspaper which deliberately publishes a statement it knows to be false or publishes recklessly may be visited with exemplary damages; verification here required only a phone call to the advocates or insurers.

p. 5
03

Quantum of general damages

Holding

The award of Kshs.5,000,000 was excessive; a composite figure of Kshs.3 million was reasonable.

Reasoning

Comparables for advocates ranged from 1 to 2 million, but the wider circulation of the libel and evidence of lost clientele and impaired hiring justified a slightly higher award; the Gicheru award of 6 million reflected the standing of a Chief Justice and was not equatable.

p. 6
04

Mitigation by offer of amends

Holding

The Court did not reduce the award for the declined apology; the reckless publication outweighed the mitigation argument.

Reasoning

The appellant argued the respondent declined an offer of amends, but the Court found the publisher's failure to verify the story before publication was the decisive factor in assessing damages, and did not treat the declined apology as requiring a reduction.

p. 5

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 libel, the trial court may consider the whole conduct of the defendant from publication to verdict in assessing damages.
  • Reckless or negligent failure to verify a libellous story is a factor in assessing damages, and damages should deter and instil responsibility in publishers.
  • Exemplary damages in libel require proof that the defendant knew the publication was tortious or was reckless, and published because material advantage outweighed material loss.

Court orders

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  1. 1.Set aside the judgment dated 14th March, 2007
  2. 2.Award the respondent a composite award of Kshs.3 million in substitution
  3. 3.Costs of this appeal and the suit below to the respondent
  4. 4.Interest at Court rate from 14th March, 2003

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
H.C.C. Suit No. 1058 of 2000
Jurisdiction invoked
First appellate jurisdiction over the High Court (the Court describes itself as 'the first and final appellate Court in this matter')

Relief refused

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Appellant's proposal that general damages be reduced to Kshs.2,000,000

The Court considered a composite figure of Kshs.3 million reasonable given the wider circulation and proven loss of business

p. 6

Appellant's request that interest run from the date of the appeal judgment

Interest was awarded from the date of the High Court judgment

p. 6

Costs

Respondent awarded costs of this appeal and the suit below, with interest at Court rate from 14th March, 2003.

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.

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. 4Appellate interference with damages
Personal rights, freedoms and values should never be sacrificed at the altar of profiteering by authors and publishers.
p. 5Deterrence in libel damages
the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be
p. 5Gravity of libel and extent of publication
Accordingly, we set aside the judgment dated 14th March, 2007 and in substitution thereof we hereby award the respondent a composite award of Kshs.3 million plus costs of this appeal and the suit below together with interest at Court rate from 14th March, 2003.
p. 6Final orders / disposition

Issues in the judgment

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material

Conflicting dates for the High Court judgment: header says 2002, body says 2003, final orders say 2007.

minor

Opening paragraph mislabels the suit as 'High Court Civil Appeal No. 1058 of 2000' though the header shows a suit.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "The Standard Limited v G.N. Kagia t/a Kagia & Company Advocates", Case Analysis (2010). Civil Appeal No. 115 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/505/eng@2010-09-24

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