B A & another v Standard Group Limited & 2 others [2016] KECA 515 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a family's claim that a magazine photo revealed a child's HIV status, ruling the publication wasn't defamatory and current rights couldn't apply backwards.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Does the 3rd respondent, Lea Toto Programme, have the capacity to be sued in its own name?
- 2.Was the publication by the 1st respondent defamatory?
- 3.Can the appellants claim breach of their rights to privacy and dignity under the current Constitution?
- 4.Were the appellants' rights to equal protection and benefit of the law breached?
- 5.Was there any breach of the Children's Act and the HIV and AIDS Prevention and Control Act?
Key legal issues
#Capacity of an unincorporated programme to be sued
Lea Toto Programme, being an approved charitable children's institution, is a 'person' capable of being sued in its own name under Article 260 of the Constitution
Article 260 defines 'person' non-exclusively using the word 'includes', permitting a wider interpretation. Order 1 rule 3 of the Civil Procedure Rules permits 'all persons' to be joined as defendants. Relying on Salmond's definition of legal personality and the Children Act definition of a charitable children's institution, the Court found that an approved outreach programme is a person capable of being sued, though this finding did not ultimately assist the appellants.
Defamatory character of the publication
The publication of the photograph with names was not defamatory; the imputation of HIV status was neither made out nor provable against a truth defence
Applying the Winfield and Jolowicz elements (defamatory statement, reference to claimant, publication), the Court held the photograph lowered no one in the estimation of right-thinking members of society. The argument that Lea Toto is known as a home for HIV-positive children would be self-defeating since truth is a complete defence to defamation. The appellants could not use the same allegation as sword and shield.
Retrospective application of the 2010 Constitution
The rights to dignity and privacy under the current Constitution could not be invoked for a 2007 publication; the repealed Constitution lacked equivalent horizontally applicable rights
Adopting the Supreme Court's guidance in Samuel Kamau Macharia, the Court held that where the words of a constitutional provision are forward-looking and contain no retrospectivity, a court must not import it, especially where it would divest rights. The repealed Constitution's non-discrimination provision (section 82) bound only persons acting in an official capacity, so it could not apply to a private media publication either.
Breach of the Children's Act and the HIV and AIDS Prevention and Control Act
No breach was established because the underlying publication infringed no rights
The substratum of the statutory claims was the same publication. Having found the publication neither defamatory nor harmful nor rights-infringing, the Court held it could not ground claims under either Act.
Legal principles established
#- An unincorporated body such as an outreach programme that has been granted approval by the National Council for Children's Services and qualifies as a charitable children's institution is capable of being sued in its own name under the 2010 Constitution
- A photograph of a child at a children's fun day identifying the child by name alone is not defamatory and does not of itself disclose HIV status
- The rights to human dignity and privacy under Articles 28 and 31 of the 2010 Constitution cannot be applied retrospectively to publications occurring before its promulgation, absent forward-looking language
- Section 82(2) of the repealed Constitution prohibited only discrimination by a person acting by virtue of written law or in performance of functions of a public office or public authority, and therefore did not reach private media publications
- On a first appeal, the court must reconsider and evaluate the evidence itself and draw its own conclusions, bearing in mind it has neither seen nor heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.Each party bears their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. 48 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate jurisdiction of the Court (the judgment does not cite a specific constitutional provision for its jurisdiction)
Relief refused
#Allowance of the appeal and setting aside of the High Court judgment
The learned Judge properly directed her mind to the pleadings and evidence and arrived at the correct decision; none of the grounds of appeal could succeed
Declarations of violation of rights to dignity, privacy, equality and best interests of the child
The publication was not defamatory and did not disclose any health status; the repealed Constitution did not confer the claimed rights against private persons
Damages, injunction and apology
Follows from dismissal of the petition and appeal
Costs
Each party to bear their own costs
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.
We come to the conclusion that the learned Judge properly directed her mind to the pleadings and evidence and arrived at the correct decision. None of the grounds challenging that decision can succeed and are dismissed. The appeal accordingly fails and is dismissed.
Given the parties? respective positions and considering their particular circumstances in this appeal, the proper order to make on costs is that each party bears their own costs.
If in fact the 3rd respondent has been granted approval by the National Council for Children?s Services and is a also a charitable children?s institution as defined above then we find that it is actually a person capable of being sued in its own name under the 2010 Constitution.
The current Bill of Rights? application is both horizontal and vertical whereas the former?s was to a large extent vertical.
This being a first appeal, the Court is enjoined to reconsider the evidence, evaluate it itself and draw its own conclusions bearing in mind that it has neither seen nor heard the witnesses.
Issues in the judgment
#The judgment cites the HIV and AIDS Prevention and Control Act with inconsistent chapter numbers - as 'No. 8 of 2001' in the petition's prayers but as 'No. 14 of 2006' in the summary of the High Court judgment
The judgment refers to the Children's Act inconsistently, first as 'Children Act No. 8 of 2001' and later as 'the Children?s Act, 2011'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "B A & another v Standard Group Limited & 2 others [2016] KECA 515 (KLR)", Case Analysis (2016). Civil Appeal No. 224 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/515/eng@2016-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.