Odondi & 2 others v Omburah t/a Okoth Omburah & Company Advocates (Civil Appeal 84 of 2009) [2013] KECA 252 (KLR)
The bottom line
#Kenya's Court of Appeal cut a Kshs 7 million libel award against The Standard to Kshs 4 million, but upheld extra damages because the paper refused to apologise.
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 award of Kshs. 7,000,000/= general damages for libel was so excessive as to warrant appellate interference
- 2.Whether the award of Kshs. 500,000/= aggravated damages should be disturbed
- 3.Whether damages should attract interest from the date of the appellate judgment
Key legal issues
#When the Court of Appeal may interfere with the discretionary award of damages by a trial judge
The court will interfere only where the trial judge misdirected himself, acted on wrong principles, or where the award is so high or so low as to be an entirely erroneous estimate causing misjustice.
Relying on Mbogo v Shah, Ephantus Mwangi v Wambugu, Rook v Rairrie and Butt v Khan, the court restated that an appellate court does not substitute its own view merely because it would have awarded differently. Interference requires wrong principles or an entirely erroneous estimate. Applying that test, the court found the Kshs. 7,000,000/= general damages award excessive because it followed unprincipled awards made at large.
Assessment of general damages for libel against the facts and comparable authorities
The award of Kshs. 7,000,000/= was on the high side and was substituted with Kshs. 4,000,000/=, the court being guided by the Jones v Pollard checklist, the Gicheru critique of unprincipled awards, and the respondent's subsequent judicial appointment.
The court applied the Jones v Pollard factors (gravity, circulation, effect on plaintiff, defendant's conduct, mitigation, vindication). It noted the respondent's evidence of lost clientele and a lost partnership, but also that he joined the judiciary three years after publication, undermining a claim of total reputational destruction. It found the pattern of awards relied on by the trial judge lacked juridical basis, as Tunoi JA had observed in the Gicheru case.
Entitlement to aggravated damages for refusal to retract or apologise
The award of Kshs. 500,000/= aggravated damages was proper and was upheld, the elements in John v MG Ltd being established.
The court adopted the English authority that exemplary/aggravated damages punish a defendant acting out of improper motive, insisting on a spurious defence of justification or failing to apologise. The appellants had denied liability in the demand letter reply, in the defence, submissions and at trial, and offered no retraction or apology, while the respondent proved actual loss of clientele and a lost prospective partnership.
Legal principles established
#- 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.
- Defamation awards must balance compensation to the claimant against other factors including constitutional protection of free speech and public policy, and cannot simply be awarded at large following earlier unprincipled awards.
- A plaintiff who establishes loss of clients and lost business opportunities arising from a defamatory publication, coupled with the defendant's refusal to retract or apologise, is entitled not only to general damages but also to exemplary damages.
Court orders
#- 1.Set aside the award of Kshs. 7,000,000/= general damages and substitute therefor Kshs. 4,000,000/= general damages for libel
- 2.Upheld the award of Kshs. 500,000/= aggravated damages
- 3.Appellant to have ½ costs of the appeal
- 4.Respondent to have ½ costs of the appeal and ½ costs of the High Court
- 5.Interest on damages and costs of the High Court to run from the date of the High Court judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Kisii
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal's appellate jurisdiction); no specific provision cited in the judgment
Relief refused
#Interest on damages at court rates from the date of the appellate judgment
No legal basis was laid for the submission; interest follows the event under the Civil Procedure Act and was awarded from the date of the High Court judgment
Setting aside the award of aggravated damages
All essential elements for aggravated damages existed and the award was founded on a proper appreciation of the law
Costs
The appellant shall have ½ costs of this appeal. The respondent shall have ½ costs of this appeal and ½ costs of the High Court, with interest on damages and High Court costs running from the date of the High Court judgment.
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.
In the event we set aside the award of Kshs. 7,000,000/= general damages and substitute thereof a sum of Kshs. 4,000,000/= general damages for libel. The award of Kshs. 500,000/= aggravated damages is upheld.
The appellant shall have ½ costs of this appeal. The respondent shall have ½ costs of this appeal and ½ costs of the High Court. For the avoidance of doubt interest on damages and costs of the High Court shall be from the date of the judgement of the High Court.
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.
The latitude in awarding damages in an action for libel is very wide and we must avoid substituting our own views on what the damages should have been against the award by the judge
we think that peculiar facts of each case should continue to be the hub upon which the awards gravitate or revolve
Issues in the judgment
#The judgment states the demand letter was dated 30th November, 2011, which appears inconsistent with the trial judgment being delivered on 28th November, 2008; likely a typographical error for 2000 or 2001.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Odondi & 2 others v Omburah t/a Okoth Omburah & Company Advocates (Civil Appeal 84 of 2009) [2013] KECA 252 (KLR)", Case Analysis (2013). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/252/eng@2013-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.