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Court of AppealPartially AllowedCivil Appeal No. 110 of 2008· [2018] KECA 313 (KLR)

Wachira Waruru & another v Margaret Wachira [2018] KECA 313 (KLR)

Court of Appeal of Kenya
28 September 2018
2,444 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 cut a Kshs 10 million libel award against The Standard to Kshs 4.5 million, ruling damages must match comparable cases and the economy.

What this practically means

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Executive summary

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The respondent, then a Principal Magistrate, sued the appellants (Wachira Waruru and The Standard Limited) for defamation over four articles published in November 2000 concerning her decision in a civil suit by a minor against a club secretary. The articles wrongly presented a Kshs. 50,000 general damages award for simple assault as a criminal conviction for sexual assault and racial discrimination. The High Court (Osiemo, J) awarded her Kshs. 8 million general and Kshs. 2 million aggravated damages. On appeal, appellants' counsel conceded liability but attacked the quantum, relying on comparable awards. The Court of Appeal restated the settled principle that on a first appeal it must re-evaluate the evidence independently, and that it may interfere with a trial judge's discretionary award only where the judge misdirected himself or was clearly wrong. It also restated the principles governing defamation damages: gravity of the libel, extent of publication, diligence of the publisher, aggravated damages for improper motive, and the requirement that awards be consistent with comparable cases and the Kenyan economy. The court found the trial judge had cited no relevant damages authority and applied no formula, making the award excessive by 2007 comparables such as Martha Karua and Ken Odondi. It allowed the appeal in part, substituting Kshs. 4 million in general damages and Kshs. 500,000 in aggravated damages, and awarded the appellants one-half of the costs of the appeal.

Key legal issues

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01

Whether the trial court's award of Kshs. 8 million general and Kshs. 2 million aggravated damages was excessive and could be disturbed on appeal

Holding

Yes. The award was inordinately high and not anchored on comparable decided cases; the court substituted Kshs. 4 million general and Kshs. 500,000 aggravated damages.

Reasoning

Liability having been conceded, the only question was whether the discretion on quantum was properly exercised. The trial judge cited no relevant authority on damages apart from Godwin Wachira v Okoth and applied no formula derived from similar cases. Comparable awards around 2007 (Martha Karua; Ken Odondi) were substantially lower. The appellants had failed to verify facts, published four widely circulated articles mischaracterising a civil award as a criminal conviction, and never apologised, but the aggregate award still exceeded the range in comparable authorities given the respondent's standing equated to that of an advocate.

p. 3
02

Principles governing the assessment of general and aggravated damages in defamation

Holding

The gravity of the libel, extent of publication, diligence and recklessness of the publisher, improper motive, comparable awards and the capacity of the Kenyan economy govern quantum.

Reasoning

The court synthesised its own precedents and John v MGM: damages must compensate for the wrong suffered; aggravated damages respond to improper motive and malice; awards must avoid escalation, maintain consistency with comparable awards and reflect inflationary trends. Applying these factors, the misrepresentation that a civil damages award was a criminal conviction, the wide circulation, and the absence of any apology supported a substantial but moderated award.

p. 2

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate the evidence and draw its own conclusions independently, while bearing in mind that it neither saw nor heard the witnesses.
  • An appellate court may only interfere with the exercise of a trial judge's discretion if satisfied the judge materially misdirected himself, arrived at a wrong decision, or was clearly wrong in the exercise of discretion resulting in misjustice.
  • In assessing damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity and professional reputation, the more serious it is likely to be.
  • In assessing libel damages the court considers whether the publisher could, with due diligence, have verified the story, and whether it acted recklessly or negligently.
  • Aggravated damages are awarded against a defendant who acts out of improper motive, actuated by malice.
  • Each damages case depends on its own facts; awards must not be excessive, comparable injuries should attract comparable awards, and damages must be within limits set by decided cases and within limits the Kenyan economy can afford.
  • A party who fails to inquire into the true facts before publishing an article may properly have an inference of malice drawn against it.

Court orders

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  1. 1.Appeal allowed to the extent that the award of Kshs. 8,000,000 in general damages is set aside and substituted with Kshs. 4,000,000
  2. 2.Award of Kshs. 2,000,000 in aggravated damages set aside and substituted with Kshs. 500,000
  3. 3.Appellants awarded one-half of the costs of the appeal

Authorities

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Legislation

  • Defamation Actsection 7A
  • Defamation Actsection 16A(1)

Cases cited (19)

  • Godwin Wachira v Okoth
    [1977] KLR 24
  • Joseph Njogu Kamunge v Charles Muriuki, Civil Appeal No. 42 of 2014
  • Kenya Tea Development Agency Limited v Benson Ondimu Masese t/a B.O. Masese & Co. Advocates
    2008 KLR 149
  • Butt v Khan, Civil Appeal No. 40 of 1997
  • Standard Limited v G.N Kagia t/a Kagia & Co. Advocates, Civil Appeal No. 115 of 2003
  • David Kipkurgat & Another v Peter Okebe, Civil Appeal No. 68 of 2004
  • J.P Macharia t/a Macharia & Co. Advocates v Kamau Kanyanga & Another, HCCC No. 612 of 1996
  • Hon. Ambassador Chirau Ali Makwere v Royal Media Services Limited, HCCC No. 57 of 2004
  • Martha Karua v Standard Limited & Another, Nairobi HCCC No. 295 of 2004
  • Andrew Mukite Musangi v Standard Group Limited, Nakuru HCCC No. 331 of 2009
  • Johnson Evan Gicheru v Andrew Morton & Another, Civil Appeal No. 314 of 2000
  • KL v The Standard Limited, Nairobi HCCC No. 20 of 2007
  • Hon. Amb. C.A.M v Royal Media Services, Civil Appeal No. 283 of 2015
  • Daniel Musinga t/a Musinga & Co Advocates v Nation Newspapers Ltd, Mombasa HCCC No. 102 of 2000
  • Selle v Associated Motor Boat Company Ltd
    (1968) EA 123
  • Mbogo & Another v Shah
    (1968) EA 93
  • John v MGM Ltd
    (1997) Q.B 586
  • Mohamed Jabane v Highstone T. Olenja
    (1986) [Vol. 1] KAR 982
  • Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah Company Advocates, Civil Appeal No. 84 of 2009
On appeal from
High Court of Kenya at Nairobi
HCCC No. 579 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite the specific constitutional or statutory provision)

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, "Wachira Waruru & another v Margaret Wachira [2018] KECA 313 (KLR)", Case Analysis (2018). Civil Appeal No. 110 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/313/eng@2018-09-28

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