Radio Africa Ltd & 1 other v Nicholas Sumba & 1 other

The court applied the elements from Nation Media Group v Kamotho: defamatory character, identification, and publication. The words, in their ordinary meaning, depicted a lawyer who assaulted a client and colluded with police. Witness testimony from a former client and another advocate confirmed that right-thinking members of society understood the words to impugn the 1st respondent's professional reputation.

Although a letter of amends was delivered to the 1st respondent's advocates, section 13(5) requires that the defendant exercised all reasonable care. The 2nd appellant never attempted to verify the caller's claims or obtain the lawyer's response, despite admitting he made no effort to do so. The offer of amends was never acted upon or accepted, so no amends were in fact made.

Following Mikidadi v Khalfan and JP Machira v Wangethi Mwangi, malice may be inferred from reckless or negligent ignorance of facts. The 2nd appellant admitted on cross-examination he saw no need to interrupt or verify the truth. Nation Newspapers v Musinga, where malice was inferred against a publisher defaming an advocate on unverified facts, was on point. Malice destroyed the innocent publication defence.

While the media is fundamental to participatory democracy, the show did not inform the public of a matter of genuine public concern: the caller presented no evidence of the events described and the appellants made no effort to investigate. The restriction on media freedom imposed by defamation law is proportionate to protecting reputation.

The court held that since the appellants owned and controlled the platform with wide coverage and facilitated the broadcast, they could not shift liability to the 2nd respondent. The ground of appeal failing, joint liability as found by the trial court stood.

Applying the Gicheru v Morton principles and the compensable-factors checklist, and guided by Standard Limited v Kagia where a like award was made for a defamed advocate, the court found the award sufficient. Section 16A of the Defamation Act sets minimums for certain cases and did not apply. Recklessness of the publisher is a factor increasing damages.

Relying on John v MGN Ltd as approved in CAM v Royal Media Services, exemplary damages require knowledge of tortious conduct and a decision to publish for material advantage. Obongo v Municipal Council of Kisumu confirms exemplary damages suit profit-motivated conduct. The 2nd appellant cut short the conversation and attempted amends, and no profit motive was perceived.