Ndung’u Njoroge & Kwach Advocates & another v Standard Limited & 8 others [2018] KECA 584 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that fair reporting on matters of public interest is protected from defamation claims unless malice or recklessness is proven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred by holding that the defence of qualified privilege was available to the respondents
- 2.Whether the learned judge erred by elevating public interest above the appellants' private right to reputation under the Constitution
- 3.Whether the appellants proved their case on a balance of probabilities, including malice or recklessness on the part of the respondents
Key legal issues
#Availability of qualified privilege to the media for publication on a matter of public interest
The press could legitimately report the involvement of the law firm of the chairman of a public-land inquiry in a fraudulent land transaction; the privilege was not destroyed absent malice or recklessness
The involvement of the law firm of the chairman of the Commission of Inquiry into illegal allocation of public land in a transaction where a public body lost land to a parcel illegally excised from a public forest was a matter of general public interest. The reporter contacted the appellants before publication and carried their rejoinder. The documentary evidence showed the law firm acted for Stanmore, negating recklessness. Under Article 34, courts must be loath to uphold unjustified invasions of media freedom.
Qualified privilege protecting the Academy's complaint to the Ndung'u Commission
The Academy had a public duty to report the fraudulent loss of its land to the Commission, which had a corresponding duty to receive the complaint; no malice was pleaded or proved
The Academy is a publicly funded body that lost its land through a fraudulent scheme. Its communication went to a public body specifically established to inquire into irregular allocation of public land. The reciprocal duty-interest relationship established privilege. The trial judge believed the evidence that the Academy did not leak its complaint to the press, and the appellate court, re-evaluating the evidence as first appellate court, found no basis to disturb that finding.
Application of the Constitution of Kenya, 2010 to a pre-2010 publication
Articles 33 and 34 applied retrospectively to proceedings determined after promulgation, as they did not divest accrued rights
Although the publication arose in 2004, the suit was heard and determined after the Constitution of Kenya, 2010 came into force. Following the Supreme Court's guidance in Samuel Kamau Macharia, the constitutional provisions on freedom of expression and media re-engineered the landscape without divesting accrued rights; the appellants themselves invoked the Constitution on appeal.
Legal principles established
#- Publication of a matter of public interest is protected by qualified privilege unless it is shown that the publication was irresponsible
- Under the Constitution of Kenya, 2010, a duty-based occasion of qualified privilege arises where a party has a duty to communicate information on a matter of public interest to a body with a corresponding duty to receive it
- Qualified privilege is defeated only by proof of malice; lack of thorough investigation per se is not malice
Court orders
#- 1.Dismissal of the appeal with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 117 of 2004 (consolidated with HCCC No. 52 of 2005)
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court in civil suits (appellate jurisdiction of the Court of Appeal)
- Consolidated with
- HCCC No. 52 of 2005
Relief refused
#Damages for libel and setting aside the trial court's dismissal
Qualified privilege was available to all respondents; no malice or recklessness was proved
Costs
Appeal dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have come to the conclusion that we have no basis for interfering with the conclusion by the learned judge. Accordingly this appeal is dismissed with costs to the respondents. It is so ordered
Consequently, publication of a matter of public interest to the general public is protected by qualified privilege unless it is shown that the publication was irresponsible.
Unlike in the case of absolute privilege, the defence of qualified privilege is destroyed if it is proved that the respondents were actuated by malice.
Under the former Constitution, the media did not enjoy any freedom as the media. It only enjoyed the freedom of expression that was guaranteed to all persons under section 79, which was subject to a host of claw-back provisions.
Issues in the judgment
#The judgment states the High Court judgment date as 5th October 2012 in the title page but 15th October 2012 in the body
The judgment refers to the 2nd respondent (Managing Editor) inconsistently where the parties' description in the narrative and submissions appear to conflate the 1st appellant and 1st respondent in places
The 9th respondent is recorded as Prof. Joseph Maro in the coram but the published article quotes the Academy's Chairman as Prof. Joseph Malo
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u Njoroge & Kwach Advocates & another v Standard Limited & 8 others [2018] KECA 584 (KLR)", Case Analysis (2018). Civil Appeal No. 193 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/584/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.