Nation Media Group v Hon. Jakayo Midiwo
The bottom line
#Kenya's Court of Appeal overturned a Kshs 5 million defamation award against Nation Media Group, ruling politicians must tolerate wider criticism and plaintiffs carry the burden of proof.
What this practically means
#Executive summary
#Key legal issues
#Meaning of the published words and the absence of pleaded innuendo
The words bore no defamatory meaning beyond their natural and ordinary meaning; the respondent improperly imported meanings such as 'prostitute' into the plain word 'lady' and no legal innuendo was pleaded.
The court held the respondent's ascription of 18 meanings was an overstretch. The word 'lady' in its ordinary usage denotes a woman of refined manners or a courteous reference to a decent woman, not a prostitute. Following Nation Newspapers Ltd v Lydia Chesire, an innuendo claim requires proof of extrinsic facts known to readers, none of which were pleaded. The meanings imputed came from the respondent's own mouth, not the publication.
Burden of proof and the trial judge's reliance on the appellant's failure to call evidence
The learned Judge erred by basing her decision merely on the appellant's failure to present evidence; the burden lay squarely on the respondent to prove his claim on a preponderance of evidence under sections 107 and 108 of the Evidence Act.
Evidence is the cornerstone of any trial. Under sections 107 and 108 of the Evidence Act, the respondent, as the party who would fail if no evidence were given on either side, bore the burden of proving the words were defamatory and malicious on a balance of probabilities. That burden did not shift to the appellant merely because it admitted publication and led no evidence.
Truth, fair comment and malice
The publication was substantially truthful and unmalicious; the incident at Mamba Hotel was a brawl or commotion, corroborated by the respondent himself and PW2, and the appellant honestly reported actual events.
The court found, on the evidence of the respondent and PW2 (the hotel manager), that a commotion or brawl occurred and that men shouting 'Koinange Street' confronted the respondent. The respondent reported the incident to police, corroborating the gist of the publication. No evidence of malice or negligence was presented. The court invoked section 14 (justification) and section 15 (fair comment) of the Defamation Act.
Damages
With the judgment set aside and the action dismissed, the award of Kshs. 5,000,000 fell with the underlying judgment; the appellant's submissions on aggravated damages were misconceived as no such award had been made.
The appellant argued aggravated damages were awarded in error, but the court noted no such award had actually been made, so the submissions were misplaced. The only relevant damages point was mitigation under section 16(2) of the Defamation Act, given the respondent's prior award of Kshs. 3,000,000 in a similar publication case. Since the appeal was allowed, quantum did not survive.
Legal principles established
#- An action for libel by innuendo depends for its success on proof by the plaintiff that special circumstances or extrinsic facts were known to persons who read the offending publications; such a meaning cannot be imposed on plain words at trial.
- The burden of proving defamation, including malice, rests on the plaintiff and does not shift because the defendant does not call evidence.
- Politicians and public figures must display a greater degree of tolerance to criticism and are subject to wider limits of acceptable scrutiny than private individuals.
- In a defamation suit the plaintiff must prove that the defamatory publication was malicious; the maker of a statement is protected if he honestly and with reasonable ground believed what he wrote was true.
Court orders
#- 1.Appeal allowed
- 2.Judgment rendered in favour of the respondent by the High Court set aside
- 3.Substituted order dismissing the respondent's action
- 4.Parties to bear their own costs both in the appeal and in the High Court
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 381 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate jurisdiction of the Court (Appeal from the Judgment and Decree of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nation Media Group v Hon. Jakayo Midiwo", Case Analysis (2018). Civil Appeal No. 130 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/422/eng@2018-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.