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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 136 of 2012

Royal Media Services Limited & another v Jakoyo Midiwo [2018] KECA 421 (KLR)

Court of Appeal
27 July 2018
4,054 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 upheld a defamation ruling against Royal Media Services but cut the damages from Ksh. 7.3 million to Ksh. 5 million.

What this practically means

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Executive summary

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The appellants, Royal Media Services Limited and Ramogi FM, appealed against a High Court judgment (Ojwang, J, dated 16th June 2010) in which the respondent, Hon. Jakoyo Midiwo, then MP for Gem Constituency, succeeded in a defamation claim over a 15th December 2003 Luo-language radio news broadcast alleging he was caught by police with prostitutes on Koinange Street. The High Court awarded a permanent injunction, general damages of Ksh. 5,000,000/=, aggravated damages of Ksh. 2,000,000/=, Ksh. 300,000/= for failure to apologise, dismissed the counter-claim and awarded costs with interest from the date of filing suit. The Court of Appeal, as a first appeal, re-assessed the evidence and framed three issues: liability, quantum and interest on costs. On liability the appeal failed: the respondent was expressly named; the defence of truth had been abandoned; and the court held that holding public office is not consent to defamation and that no public interest justifies broadcasting incorrect information. The New York Times v Sullivan rule was held not to protect reckless, inaccurate publication. On quantum, the court found the total award of Ksh. 7,300,000/= excessive by comparison with comparable awards, reducing general damages to Ksh. 4,000,000/= and aggravated damages to Ksh. 1,000,000/=, and setting aside the Ksh. 300,000/= award for failure to apologise as incapable of standing alone. On interest, the court held that interest on the damages and on High Court costs runs from the date of the High Court judgment, not the date of filing suit. The High Court judgment was partially upheld and varied; each party bears its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding the Appellants liable in defamation
  2. 2.Whether the trial court erred in awarding the quantum of damages specified in the order
  3. 3.Whether the trial court erred in awarding interest on costs from the date of filing suit

Key legal issues

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01

Liability for defamation

Holding

The trial court did not err in finding the Appellants liable; the publication was inaccurate, non-factual, reckless and defamatory, the truth defence was abandoned, and no public-interest privilege avails against inaccurate publication

Reasoning

The Respondent was expressly named in the broadcast, satisfying identification. The Appellants abandoned truth and justification, leaving constitutional privilege/public interest. The court held that holding public office is not consent to defamation, and that inaccurate, reckless publication - as shown by the Editorial Director's inability to verify the story - falls outside any New York Times privilege. Liability on a balance of probabilities was therefore established.

p. 5
02

Quantum of damages

Holding

The total award of Ksh. 7,300,000/= was too high; reduced to general damages of Ksh. 4,000,000/= and aggravated damages of Ksh. 1,000,000/=, with the Ksh. 300,000/= award for failure to apologise set aside as it cannot stand alone

Reasoning

Guided by the settled principle that an appellate court interferes with quantum only on wrong principle or wholly erroneous estimate, and comparing comparable defamation awards (Ken Odondi, Mwangi Kiunjuri, Eric Gor Sungu), the court found the total award excessive. It also held that damages for failure to apologise form part of aggravated damages and cannot be a separate head.

p. 7
03

Interest on costs and damages

Holding

The trial court erred in awarding interest on costs from the date of filing suit; interest on the damages awarded and on High Court costs runs from the date of the High Court judgment, 16th June 2010

Reasoning

Relying on Samuel Philip Kidoti and Dipak Emporium, the court held that where damages are assessed by the court, the right to them arises only on assessment, so interest runs from the date of judgment. General damages bear interest from judgment; only special damages bear interest from filing suit. The award of interest on costs from the date of filing suit was therefore erroneous.

p. 4

Legal principles established

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  • An appellate court will not interfere with the quantum of damages awarded by a trial court unless it acted on a wrong principle, misapprehended the facts, or the award is so inordinately high or low as to be a wholly erroneous estimate
  • Public office or membership of Parliament does not constitute consent to defamation; public interest cannot justify broadcasting incorrect or defamatory information
  • Damages for failure to apologise are part of aggravated damages and cannot be a stand-alone award
  • General damages bear interest from the date of judgment, not from the date of filing suit; where damages must be assessed by the court, interest runs only from the date of judgment
  • The rule in New York Times v Sullivan does not protect inaccurate, non-factual publication made recklessly in disregard of the truth

Court orders

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  1. 1.The judgment of the High Court dated 16th June 2010 partially upheld and varied
  2. 2.General and aggravated damages awarded by the High Court set aside and substituted: general damages of Ksh. 4,000,000/= and aggravated damages of Ksh. 1,000,000/= to the Respondent
  3. 3.The Appellants to bear costs of the suit before the High Court
  4. 4.Interest on costs of the suit at the High Court at court rates from the date of judgment in the High Court, namely 16th June 2010
  5. 5.Each party to bear his/its costs in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
Nairobi HCCC No. 1328 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment identifies itself as a first appeal from the High Court); no specific constitutional or statutory article is quoted in the judgment.

Relief refused

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Appellants' challenge to liability in defamation

Court found the publication defamatory, inaccurate and reckless; the defence of truth had been abandoned and public interest does not justify broadcasting incorrect information

p. 6

Reversal of interest direction entirely

Interest re-ordered to run from the date of the High Court judgment rather than date of filing suit

p. 7

Costs

The Appellants to bear costs of the suit before the High Court; the appeal having partially succeeded, each party to bear his/its costs in appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

being in public office or for that matter a Member of Parliament, does not mean consent to defamation.
p. 5Public figure privilege / consent
There can never be public interest to air or broadcast incorrect or defamatory information.
p. 5Public interest defence
The rule in New York Times (supra) does not protect inaccurate and non-factual publication of disparaging matter that is made recklessly in disregard of the truth.
p. 5Actual malice / reckless publication
we interfere with the award and reduce the general damages to Ksh. 4,000,000/=; aggravated damages is reduced to Ksh. 1,000,000/= and we set aside the award of Ksh. 300,000/= being damages for failure to apologise.
p. 7Quantum substitution
damages for failing to apololigise is part of aggravated damages and cannot be a stand-alone award.
p. 7Damages for failure to apologise
General damages bear interest from the date of judgment while special damages bear interest from the date of filing of the suit.
p. 7Interest on damages
(4) The appeal having partially succeeded, each party to bear his/its costs in appeal.
p. 7Final orders - costs of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Royal Media Services Limited & another v Jakoyo Midiwo [2018] KECA 421 (KLR)", Case Analysis (2018). Civil Appeal No. 136 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/421/eng@2018-07-27

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