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Court of AppealAllowedCivil Appeal No. 165 of 2012· [2017] KECA 177 (KLR)

Nation Media Group Limited & another v Alfred N. Mutua [2017] KECA 177 (KLR)

Court of Appeal
17 November 2017
RNR. N. NambuyeWilliam OukoW. OukoSKS. Gatembu Kairu
4,205 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 freed the media to criticise public officials: calling statements 'dangerous talk' was protected fair comment, not defamation.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Nairobi (Nambuye, Ouko and Gatembu Kairu, JJ.A) allowing the appeal of Nation Media Group Limited and its journalist Kenfrey Kiberenge against a High Court judgment (Dulu, J, 18 March 2011) which found them liable for defaming Dr. Alfred N. Mutua, then Government Spokesperson, in a Daily Metro article headed Dangerous Talk, and awarded him Kshs. 4.5 million in general damages. On appeal, counsel compressed six grounds into a single question: whether the trial Judge erred in rejecting the defence of fair comment; the complaint that damages were excessive was withdrawn. The Court restated the elements of fair comment, drawing on Gatley on Libel and Slander and the English Supreme Court decision in Spiller v Joseph: the words must be recognizable as comment rather than fact, must rest on true or substantially true facts contained or referred to in the publication, and must concern a matter of public interest. The Court held that the characterization of the respondent's inflammatory statements during the post-2007 election crisis as dangerous talk was opinion, not fact, that the article set out the factual basis for its subtitles, and that statements by the Government Spokesperson were matters of legitimate public interest under Lord Denning's test in London Artists v Littler. The Court reversed the High Court judgment, set it aside, and substituted an order dismissing the respondent's suit, with costs to the appellants in both courts. Lower courts are henceforth bound by the Court's articulation of the fair comment test.

Key legal issues

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01

Requirements of the defence of fair comment

Holding

The defence requires that the words be recognizable as comment rather than fact, be based on true or substantially true facts contained or referred to in the publication, and concern a matter of public interest.

Reasoning

The court adopted the five non-controversial elements from Spiller v Joseph as endorsed in Gatley: the comment must be on a matter of public interest, recognizable as comment, based on true or privileged facts, indicate the facts on which it is made, and be one an honest person could make. The court treated these as the governing legal test which the trial Judge failed to apply.

p. 5
02

Whether the characterization of the respondent's statements as dangerous talk was comment or fact

Holding

The characterization was an expression of opinion, not an allegation of fact, and an opinion an honest person could have expressed on a matter of public interest.

Reasoning

The respondent had made inflammatory statements during the post-election crisis asserting ODM leaders planned killings and ethnic cleansing, contrary to the mediation process. Calling these dangerous talk was comment on those facts. The article chronicled five statements attributed to the respondent as the factual basis for the subtitles, satisfying the requirement of a basis of fact within the publication.

p. 6
03

Public interest in comment on a Government Spokesperson's statements

Holding

Statements by the Government Spokesperson, especially where inconsistent with the President's position, are matters of public interest on which fair comment is permissible.

Reasoning

Applying Lord Denning's formulation in London Artists v Littler, the subject matter affected people at large during the post-election crisis. The respondent, as Government Spokesperson, made statements construed as the Government position; where these appeared inconsistent with the President's stance, there was justification for the comment and the question posed. The trial Judge's own observations, properly applied, would have led to a different decision.

p. 7

Legal principles established

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  • To sustain the defence of fair comment, the defendant must show that the words are comment and not statement of fact; that there is a basis of fact contained or referred to in the publication; and that the comment is on a matter of public interest.
  • Comment can only be fair if the basic facts upon which it is premised are true or substantially true; a comment based on lies or falsehood cannot be fair.
  • Malice defeats the defence of fair comment and may be inferred from deliberate, reckless or negligent ignoring of facts.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court delivered on 18th March 2011 set aside
  3. 3.Judgment of the High Court substituted with an order dismissing the respondent's suit
  4. 4.Respondent's suit dismissed with costs to the appellants
  5. 5.Appellants awarded the costs of this appeal

Authorities

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Legislation

  • Defamation ActSection 14
  • The repealed Constitution of KenyaSection 79
  • Constitution of Kenya, 2010Articles 33 and 34

Cases cited (8)

  • Spiller & Anor vs. Joseph & others
    [2010] UKSC 53
  • London Artists Limited vs. Littler
    [1969] 2 All ER 193
  • Galloway vs. Daily Telegraph
    [2006] EWCA Civ 17
  • Khasakhala vs. Aurah and others
    [1995-1998] 1 EA 112
  • Mong’are t/a Gekong’a & Momanyi Advocates vs. Standard Ltd
    [2002] eKLR
  • J. P. Machira t/a Machira & Company Advocates vs. Wangethi Mwangi & another
    [1998] eKLR
  • Grace Wangui Ngenye vs. Chris Kirubi and another
    Civil Appeal No. 40 of 2010 [2015] eKLR
  • Tse Wai Chun Paul vs. Albert Cheng
    [2001] EMLR 777
On appeal from
High Court
H.C.C.C. No. 132 of 2008
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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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, "Nation Media Group Limited & another v Alfred N. Mutua [2017] KECA 177 (KLR)", Case Analysis (2017). Civil Appeal No. 165 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/177/eng@2017-11-17

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