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Court of AppealDismissedCivil Appeal No 153 of 2010· [2017] KECA 788 (KLR)

Royal Media Services Limited & Another v Julius Njire Muraya & Another t/a Muraya & Wachira Advocates

Court of Appeal of Kenya
2 February 2017
3,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed media houses must verify facts before broadcast, upholding a Ksh 5 million defamation award against Royal Media Services.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Nambuye and Kiage, JJ.A) dismissed this first appeal against a High Court judgment (Koome, J., 1 August 2008) awarding two advocates Ksh 4,000,000 general damages and Ksh 1,000,000 punitive and aggravated damages over Citizen Radio ('Wembe wa Citizen') and Inooro FM ('Ndurika') broadcasts in June 2005 alleging they had received Ksh 250,000 of a client's settlement monies but refused to remit it. The appellants argued a defence of justification, 'constitutional privilege' under Section 79 of the repealed Constitution relying on New York Times v Sullivan, and that the damages were inordinately high. The court re-evaluated the evidence as on a first appeal and held the broadcasts plainly concerned and defamed the respondents, causing loss of business and injury to reputation. Justification collapsed because no record existed of cheques cleared in the respondents' favour. Section 79 conferred no carte blanche on expression, the American public-figure doctrine was distinguished and held of no utility, and Reynolds qualified privilege was forfeited because the 1st appellant failed to verify facts and repeated the broadcasts after receiving the respondents' clarification, evidencing malice. On quantum, applying Butt v Khan and the Gicheru v Morton guidelines, the award was within the range of comparable decisions (Odondi, Kiunjuri) and was not disturbed. The judgment affirms the High Court decision in its entirety and dismisses the appeal with costs. It binds subordinate courts on the unavailability of a freestanding constitutional-privilege defence in Kenyan defamation law and the responsible-journalism conditions for Reynolds privilege.

Key legal issues

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01

Identification and defamatory character of the broadcasts

Holding

The broadcasts plainly referred to the respondents and were defamatory, lowering them in the estimation of right-thinking members of society and causing loss of business and esteem.

Reasoning

Applying Knupffer, Newstead and Morgan v Odhams Press, the court held words need not name the plaintiff if ordinary listeners with knowledge of special facts understood them to refer to the plaintiff. The broadcasts alleged the respondents withheld a client's money; evidence showed no cheques were cleared in their favour, and the broadcasts caused inquiries, loss of business and injury to reputation.

p. 5
02

Defence of justification

Holding

The defence collapsed because the respondents had not in fact received the monies, so the substance of the libel was untrue.

Reasoning

Relying on Sutherland v Stopes (Lord Findlay and Lord Shaw), the court reasoned that justification requires proof that both the facts and any comments or inferences are true. Since PW3's testimony established no record of cheques cleared in the respondents' favour, the plea of justification could not stand.

p. 6
03

Constitutional privilege / public-interest defence

Holding

Section 79 of the repealed Constitution did not create a carte blanche freedom of expression and the New York Times v Sullivan public-figure doctrine is distinguishable and of no utility.

Reasoning

The court found the freedom of expression under the repealed Constitution was qualified by Sections 70(b) and 79(2). It distinguished New York Times v Sullivan on the facts and rejected the submission that the respondents, as advocates, were public figures, holding there is no privilege to defame without factual basis.

p. 6
04

Reynolds privilege / responsible journalism

Holding

The 1st appellant forfeited Reynolds qualified privilege by failing to verify facts and by ignoring the respondents' clarifications, demonstrating malice.

Reasoning

The court accepted that Reynolds privilege exists for responsible publications on matters of public concern, but it requires responsible journalism, including fact verification. The 1st appellant aired the broadcasts after receiving clarification from the respondents, breaching the standard and evidencing malice.

p. 6
05

Quantum of damages

Holding

The award of Ksh 5,000,000 (general plus punitive/aggravated damages) was within the range of comparable awards and would not be disturbed.

Reasoning

Damages assessment is discretionary; appellate interference requires an entirely erroneous estimate, wrong principles, or misapprehension of evidence (Butt v Khan). The trial judge was entitled to consider the whole conduct of the defendant (Gicheru v Morton, citing Praud v Graham). Comparable awards in Odondi and Kiunjuri supported the figure.

p. 7
06

Refusal of adjournment to call a defence witness

Holding

The complaint was not upheld; there is no automatic right of adjournment, and the appellants were not denied a fair hearing.

Reasoning

The court accepted the respondents' submission that adjournment is a matter of judicial discretion and that the learned Judge had reason to reject the application; the appellants were not denied the right to be heard.

p. 4

Legal principles established

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  • A plea of justification requires the defendant to prove the truth of both the facts stated and any comments or inferences drawn from them.
  • There is no constitutional privilege in Kenya permitting publication of defamatory matter about public figures without a factual basis; New York Times v Sullivan does not apply.
  • The Reynolds qualified-privilege defence depends on adherence to standards of responsible journalism, including verification of facts before publication.
  • An appellate court will not disturb a damages award unless it is so inordinately high or low as to represent an entirely erroneous estimate.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya (repealed)Section 79
  • Constitution of Kenya (repealed)Section 70(b)
  • Constitution of Kenya (repealed)Section 79(2)(a)(b)(c)

Cases cited (22)

  • New York Times v Sullivan
    376 US 254 (1964)

    Constitutional privilege/public-figure defence; distinguished and held of no utility

  • Theophanous v Herald & Weekly Times Ltd
    [1994] 3 LRC 369

    Constitutional privilege defence (cited in grounds of appeal)

  • Jameel & Others v Wall Street Journal
    (2006) 4 All ER 1296

    Responsible journalism/public-interest defence (cited in grounds of appeal)

  • Nation Media Ltd v Bogoshi
    (1998) 4 A 1196

    Public-interest defence (cited in grounds of appeal)

  • Johnson Evans Gicheru v Andrew Morton
    (2005) KLR 332

    Guidelines on quantum of damages in libel; whole conduct of defendant may be considered

  • Chirau Ali Mwakwere v Royal Media Services Limited
    [2005] eKLR

    Cited by appellant on constitutional privilege and public figures

  • Standard Limited v G.N. Kagia t/a Kagia & Company Advocates
    [2010] eKLR

    Cited by appellant on quantum of damages

  • Paul Gikonyo Muya v Nation Media Group
    [2015] eKLR

    Cited by appellant on quantum of damages

  • Kenya Tea Development Agency Ltd v Masese t/a B.O. Masese & Co Advocates
    [2008] eKLR

    Cited by appellant on quantum of damages

  • J.P. Machira t/a Machira & Company Advocates v Kamau Kanyanga & Another
    [2005] eKLR

    Quantum of damages in libel

  • Fred Oliver Omondi N'cruba Ojiambo v Standard Limited & 2 Others
    [2004] eKLR

    Cited by appellant on quantum of damages

  • Selle v Associated Motor Boat Co
    [1968] E.A. 123

    Duty of first appellate court to re-evaluate evidence

  • Knupffer v London Express Newspaper Limited
    (1944) AC 116; [1944] 1 All ER 495

    Words not actionable unless published of and concerning the plaintiff

  • Newstead v London Express Newspaper Limited
    (1940) 1 KB 377; [1939] 4 All ER 319

    Words actionable where plaintiff clearly identified even if intended for another

  • Morgan v Odhams Press Ltd
    [1971] 2 All ER 1156

    Words may refer to plaintiff where ordinary readers with special facts so understand

  • Sutherland v Stopes
    [1925] A.C. 47

    Meaning of plea of justification - truth of facts and comments

  • Reynolds v Times Newspapers
    [2001] 2 A.C. 127

    Qualified privilege for responsible publications on matters of public concern

  • Butt v Khan
    [1981] KLR 349

    Conditions for appellate interference with award of damages

  • Tanganyika Transport Co Ltd v Ebrahim Nooray
    [1961] EA 55

    Wide latitude in awarding damages in libel

  • Praud v Graham
    24 Q.B.D. 53, 55

    Trial court may consider whole conduct of defendant in assessing libel damages

  • Ken Odondi & 2 Others v James Okoth Omburah t/a Okoth Omburah & Company Advocates
    [2013] eKLR

    Comparable award of libel damages commending itself to the court

  • Mwangi Kiunjuri v Wangethi Mwangi & 2 Others
    [2016] eKLR

    Comparable award of libel damages commending itself to the court

On appeal from
High Court of Kenya at Nakuru
Nakuru HCCC No 228 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly 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, "Royal Media Services Limited & Another v Julius Njire Muraya & Another t/a Muraya & Wachira Advocates", Case Analysis (2017). Civil Appeal No 153 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/788/eng@2017-02-02

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