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Court of AppealAllowedCivil Appeal No. 283 of 2005· [2013] KECA 178 (KLR)

C A M v Royal Media Services Limited [2013] KECA 178 (KLR)

Court of Appeal
18 October 2013
RNR. N. NambuyePKP. O. KiageSKS. Gatembu Kairu
4,223 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal doubled a defamation award against Royal Media Services to Kshs 6 million, ruling broadcast of unverified allegations deserved tougher punishment.

What this practically means

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Executive summary

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This is a Court of Appeal judgment in an appeal by a former Cabinet Minister and Ambassador against the quantum of damages awarded by the High Court (Ransley J) for defamation arising from broadcasts on Citizen Radio and Citizen TV alleging that he had been found soliciting sex on Koinange Street. The trial court had awarded Kshs. 3 million, comprising general, exemplary and aggravated damages of Kshs. 1 million each. The sole question before the appellate court was whether, and to what extent, to interfere with that award. Restating the settled principle from Butt v Khan, Butler v Butler and Gicheru v Morton that an appellate court is slow to disturb damages awards, the Court nonetheless found the trial judge had fallen into error by constraining himself to his own earlier award in the Akiwumi case, thereby failing to exercise the wide latitude of discretion and to consider the peculiar circumstances of the case, notably the gravity of the libel, its extensive radio and television reach, and the appellant's high status. The Court enhanced general damages to Kshs. 3 million, exemplary damages to Kshs. 1.5 million (punishing the respondent's reckless publication of unconfirmed, unverified reports while the appellant was demonstrably out of the country), and aggravated damages to Kshs. 1.5 million (for the refusal to apologize and insulting cross-examination on unpleaded matters). The appeal was allowed, the High Court judgment and decree set aside, and the total award substituted at Kshs. 6 million, with costs of the appeal to the appellant.

Key legal issues

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01

Interference with an appellate award of damages

Holding

The Court will be slow to interfere with a trial judge's award of damages, but will do so where the award is so inordinately high or low as to represent an entirely erroneous estimate or where the judge proceeded on wrong principles.

Reasoning

The Court reviewed Butt v Khan, Butler v Butler and Gicheru v Morton, restating the classic threshold for appellate interference with discretionary awards of damages. Finding that the trial judge was wrongly constrained by his own earlier award in the Akiwumi case, and that the general damages award of Kshs. 1 million was, given the gravity of the libel and its wide radio and television publication, so low as to be an erroneous estimate, the Court was entitled to interfere and substitute its own award.

p. 5
02

Assessment of general damages for defamation

Holding

General damages of Kshs. 1 million was so low as to represent an erroneous estimate; the appropriate award, having regard to the gravity of the libel, the extent of publication and the appellant's status, was Kshs. 3 million.

Reasoning

Guided by Jones v Pollard factors and John v MGN, the Court held that the most important factor is the gravity of the libel and the extent of publication. The defamatory broadcast on Citizen radio and TV touched the personal integrity, professional reputation and honour of a serving Cabinet Minister and Ambassador, enjoyed wide coverage, and was founded on untrue facts. Injury varies with the claimant's status, so the award was enhanced to Kshs. 3 million.

p. 7
03

Exemplary damages for reckless publication

Holding

Exemplary damages punish the wrongdoer and deter others; publishing on the basis of unconfirmed reports without verification justified enhancing the award to Kshs. 1.5 million.

Reasoning

The Court noted that exemplary damages import the criminal law principle of punishment into civil law. The respondent broadcast 'unconfirmed reports', named the appellant without a solid factual foundation, and could have avoided the broadcast by verifying the appellant's whereabouts (he was out of the country on the relevant date). The trial judge failed to take those factors into account, falling into error, justifying enhancement.

p. 7
04

Aggravated damages

Holding

Aggravated damages were rightly awarded because the respondent's conduct, including refusal to apologize and wounding cross-examination on unpleaded matters, increased the appellant's injury; the award was enhanced to Kshs. 1.5 million.

Reasoning

The respondent failed to apologize or retract and pleaded it was under no obligation to do so; the cross-examination delved into alleged escapades with prostitutes in various locations that were not pleaded. The trial judge had cautioned the respondent against treading that dangerous path if the allegations were not established as true, a caution the respondent ignored. The Kshs. 1 million award was therefore not a reasonable estimate and was enhanced.

p. 8

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 some material respect.
  • A trial judge who constrains himself by his own previous awards fails to exercise the wide latitude of discretion in defamation damages and errs by not taking into account the peculiar circumstances of the case.
  • Injury suffered in defamation is not the same for all persons; the status of the particular person affects the extent of the injury suffered.
  • Publishers who broadcast on the basis of unconfirmed reports without verifying the facts risk exemplary damages to deter and punish reckless or negligent publication.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the High Court set aside and substituted with an award of Kshs. 6,000,000 made up of general damages of Kshs. 3,000,000, exemplary damages of Kshs. 1,500,000 and aggravated damages of Kshs. 1,500,000
  3. 3.Appellant awarded costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya (repealed)Section 79

Cases cited (15)

  • Johnson Evans Gicheru vs. Andrew Morton and Another
    [2005] eKLR
  • New York Times v Sullivan
    376 US 254 (1964)
  • Standard Media vs. Kagia & Co Advocates
    [2010] eKLR
  • John vs. MGN Ltd
    [1997] QB 586
  • KC vs. MGM Ltd
    [2012] EWHC 483 (QB)
  • Butler v Butler
    [1984] KLR 225
  • Akilano Molade Akiwumi vs. Andrew Morton and Another
    HCCC 1717 of 1999 (UR)
  • Butt V Khan
    (1981) KLR 349
  • Gicheru V Morton and Another
    (2005) 2 KLR 333
  • Jones V Pollard
    (1997) EMLR 233-243
  • Mansion V Associated Newspapers LTD
    (1965) 2 ALL ER 954
  • George Oraro v Barack Weston Mbaja
    HCC 85 OF 1992
  • Abraham Kiptanui v Francis Mwaniki and 4 others
    HCCC 42 of 1997
  • Daniel Musinga t/a Musinga & Co Advocates vs. Nation Newspapers Ltd
    [2005] eKLR
  • Nation Newspapers Limited v Daniel Musinga T/A Musinga & Co Advocates
    Civil Appeal No. 120 of 2008
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 57 of 2005
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal's appellate jurisdiction in civil matters)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "C A M v Royal Media Services Limited [2013] KECA 178 (KLR)", Case Analysis (2013). Civil Appeal No. 283 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/178/eng@2013-10-18

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