Jakoyo Midiwo v Nation Media Group Limited & another [2018] KECA 248 (KLR)

The court restated the group-defamation rule: a class is defamed only if the publication refers to all members, particularly where the class is very small, or specially imputes to particular members. A plaintiff must show a reasonable person would perceive the statement to be of and concerning him. With over 200 MPs and no naming or identifying detail in the article, the appellant could not isolate himself from the class; a third party's broadcast naming him could not convert the article into an innuendo reference by the respondents.

The trial court found, and the Court of Appeal affirmed, that the respondents were not responsible for Royal Media Services' broadcasts naming the appellant. Media houses pursue their own editorial policies and do not share or vet competitors' content; each publisher answers only for its own publication. The appellant's remedy, if any, lay against the media house that actually named him.

The trial judge assessed quantum conditionally, in case liability were found on appeal. Having found no liability, the Court held the damages ground was academic. The court also noted the trial judge's figure of Kshs. 2.5 million rather than the Kshs. 2 million asserted in the memorandum of appeal.

Relying on Selle v Associated Motor Boat Co., the Court reaffirmed that a first appeal is by way of retrial: it must reconsider and evaluate the evidence itself and draw its own conclusions, though it need not follow the trial judge's findings of fact where those failed to take account of particular circumstances or probabilities.