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Court of AppealPartially AllowedCivil Appeal No. 71 of 2010· [2016] KECA 122 (KLR)

Nation Newspapers Limited v Peter Baraza Rabando [2016] KECA 122 (KLR)

Court of Appeal of Kenya
27 April 2016
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,456 words in judgment
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The bottom line

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Kenya's Court of Appeal reduced a Kshs 2 million defamation award against Nation Newspapers to Kshs 1.2 million, holding damages must reflect the defamed person's status.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Nambuye and Kiage, JJA) determined a single issue: whether the High Court's award of Kshs 2 million in general damages against Nation Newspapers Limited for defaming Peter Baraza Rabando ought to be interfered with. The defamation arose from two false and sensational 1998 Daily Nation articles, with a manipulated photograph, portraying the respondent as a farm hand who attempted to milk an elephant, when in truth he had been injured by a stray elephant while weeding maize. The appellant abandoned its grounds on liability and challenged only quantum, submitting the award was excessive given the respondent's modest status. The Court reaffirmed the settled principles in Mbogo v Shah and Butt v Khan that an appellate court will not disturb a discretionary award unless the judge misdirected himself or the figure is so inordinately high or low as to be an entirely erroneous estimate. It accepted that the trial judge had largely undertaken the assessment properly, but found he failed to account for the respondent's relatively low status, standing and fame compared to plaintiffs in comparable awards. Reiterating that it would be a Utopian fallacy to award equal compensation regardless of the defamed person's status, the Court held the Kshs 2 million award was manifestly and inordinately high, set it aside, and substituted an award of Kshs 1.2 million. The appeal therefore succeeded in part, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the appellate court may interfere with the trial judge's award of general damages for defamation

Holding

Yes, where the award is manifestly and inordinately high compared with comparable awards, warranting interference and adjustment downwards.

Reasoning

The Court accepted the well-known principles in Mbogo v Shah and Butt v Khan that an appellate court will not disturb a discretionary award unless the judge misdirected himself or the award is so inordinately high or low as to be an entirely erroneous estimate. Applying those principles, it found the Kshs 2 million award exceeded comparable awards to persons of greater prominence, such as in the Aziz Kassim Lakha and Ojiambo cases, and was manifestly excessive.

p. 4
02

Whether the status of the defamed person is relevant to the assessment of damages

Holding

The status of the plaintiff affects the extent of the injury and hence the quantum of damages; persons not known beyond their immediate environment attract lower awards.

Reasoning

The Court held that while all persons are equal before the law, it would be a Utopian fallacy to assume equal compensation regardless of status, standing and character. A person not known beyond his immediate family, residential and work environment calls for less damages than a person of prominence whose fame spreads beyond county and country. The trial judge had failed to take the respondent's modest status into account.

p. 4

Legal principles established

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  • An appellate court will not interfere with an award of damages unless the trial judge misdirected himself, proceeded on wrong principles, or misapprehended the evidence so as to arrive at an entirely erroneous estimate.
  • The status, standing and character of a defamed person affect the extent of the injury suffered and thus the quantum of damages; less prominent persons attract lower awards.

Court orders

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  1. 1.The award of damages made by the learned Judge is set aside and substituted with an award of Kshs 1.2 million
  2. 2.Each party shall bear its own costs of the appeal

Authorities

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Cases cited (11)

  • Mbogo vs Shah
    [1968] E.A
  • Evans vs Bartlam
    [1937] 2 All ER 646
  • Butt vs Khan
    [1981] KLR 349
  • Wren vs Fairfax & Sons Pty Ltd
    [1967] 117 CLR 118
  • Cassel & Co. Ltd vs Broome & Another
    [1972] 1 All ER 801
  • C.A.M vs Royal Media Services
    [2013] eKLR
  • Nation Newspapers Limited vs Daniel Musinga t/a Musinga & Co. Advocates
    [2005] eKLR
  • Johnson Evans Gicheru vs Andrew Morton
  • Aziz Lakha vs The Standard Limited t/a East African Standard
    [2009] eKLR
  • Ojiambo vs Standard Limited & 2 Others
    [2004] KLR 496
  • KNK Biwott vs Clays Limited
    Nairobi HCCC 1067 of 1999
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 505 of 1998
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal as of right on law and facts under the appellate framework; no specific provision cited in the judgment)

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, "Nation Newspapers Limited v Peter Baraza Rabando [2016] KECA 122 (KLR)", Case Analysis (2016). Civil Appeal No. 71 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/122/eng@2016-04-27

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