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Court of AppealPartially AllowedCivil Appeal No. 156 of 2017· [2018] KECA 801 (KLR)

Honourable Musikari Kombo v Royal Media Services Limited

Court of Appeal
9 February 2018
4,919 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 awarded a former minister KShs 6 million because a TV station broadcast a false story about his 'wife' without verifying facts.

What this practically means

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Executive summary

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This Court of Appeal judgment (Visram, Karanja and Koome, JJ.A) allowed the appellant Musikari Kombo's appeal against the dismissal by Odunga, J. of his defamation suit against Royal Media Services Limited over two 2011 news broadcasts falsely stating that his wife, Elizabeth Kaloki Kombo, had been charged with misappropriating over nine million shillings. The appellant's actual wife was Dorcas Florence Kombo. The High Court had dismissed the suit, holding that a relative of a defamed person cannot generally sustain a defamation claim unless the publication necessarily imputes connection to the defamatory matter. The Court of Appeal disagreed. It first held that the respondent had not admitted liability within the Choitram v Nazari parameters, its defence containing specific denials and an alternative good-faith plea. It then held, departing from the trial judge, that the broadcasts concerned the appellant directly because his name and status were expressly used to sensationalise the story, and the woman named was not his wife, imputing polygamy. Applying the objective test, the Court found the words defamatory. Qualified privilege failed because the reporter never verified the marital link and the respondent rebroadcast the story after a complaint without verification, opening it to imputation of malice; the prime-time coverage of the broadcasts also rendered the early-morning apology inadequate. The Court set aside the judgment to that extent, found the claim established, confirmed the damages award of Kshs.6,000,000 (general Kshs.5,000,000 and aggravated Kshs.1,000,000), and awarded costs of both the appeal and the High Court suit to the appellant.

Key legal issues

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01

Whether the respondent had admitted liability

Holding

The Court held there was no admission capable of justifying judgment on liability without evidence; the defence contained specific denials and only an alternative plea of good faith.

Reasoning

Relying on Choitram v Nazari as restated in Abok James Odera and Tea Board of Kenya, the Court applied the parameters of what constitutes an admission under the Civil Procedure Rules. A purposive reading of the pleadings showed specific denials of defamation and an alternative plea of good faith, which cannot amount to an admission warranting entry of judgment without the benefit of evidence.

p. 4
02

Whether the broadcasts referred to and concerned the appellant

Holding

The Court, differing from the High Court, found the broadcasts concerned the appellant because his name and status were expressly used, and the woman named was not his wife.

Reasoning

Both broadcasts expressly named the appellant and identified the accused woman as his wife. The respondent's own witness confirmed the name was used to sensationalise and attract a wide audience. The Court distinguished the general rule in Knupffer v London Express, holding that the appellant sued on the direct reference to himself, not on his relationship to his wife, and that naming a non-wife as his wife imputed polygamy.

p. 5
03

Whether the words were defamatory of the appellant

Holding

The words were defamatory, conveying that the appellant was polygamous and that his wife was involved in corruption.

Reasoning

Applying the objective test from Halsbury's Laws and S M W v Z W M, the Court assessed the meaning the ordinary reasonable viewer would take. The ordinary meaning imputed polygamy and association with corruption, which was gravely injurious to a known anti-corruption crusader. Uncontroverted evidence of family inquiries and questioning at the American Embassy showed the publication lowered him in the estimation of right-thinking members of society.

p. 5
04

Whether the defence of qualified privilege was available

Holding

Qualified privilege was unavailable because the reporter did not verify the link to the appellant and the story was rebroadcast after a complaint without verification, evidencing malice.

Reasoning

Although corruption involving public figures is a matter of public interest and the defence is entrenched under Section 7 of the Defamation Act, the Reynolds criteria require verification and balance. Janet testified she inferred the marital link from court orderlies' remarks without naming the 'mheshimiwa', and the respondent repeated the story at 9:00 p.m. after the appellant's complaint. These failures opened the respondent to imputation of malice.

p. 6
05

Whether the apology was adequate

Holding

The apology aired on the Breakfast Show was inadequate because it lacked the prime-time coverage of the offending broadcasts.

Reasoning

The Court weighed the audience reach of the 7:00 a.m. apology against the 7:00 p.m. and 9:00 p.m. prime-time broadcasts. Both parties' witnesses acknowledged few viewers watched the early morning programme, so the apology could not undo the reputational harm caused by the widely viewed offending broadcasts.

p. 6

Legal principles established

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  • A first appellate court is not bound by the findings of fact of the court below; the appeal is by way of retrial and the court must reconsider and evaluate the evidence itself.
  • To succeed in defamation a claimant must establish a defamatory statement, its publication by the defendant, and that the publication refers to the claimant.
  • A plaintiff with a cause of action based purely on relationship to a defamed person cannot sue, but where the publication names and concerns the claimant directly, the claimant may sue in his own right.
  • A journalist who publishes an unverified inference linking a person to criminal charges, and who repeats the story after a complaint without verification, cannot claim the protection of qualified privilege; such conduct opens the publisher to imputation of malice.

Court orders

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  1. 1.The appeal is allowed with costs to the appellant
  2. 2.The High Court judgment is set aside to the extent that it found the appellant had no cause of action
  3. 3.A finding that the appellant established his claim in defamation against the respondent
  4. 4.The award of damages of Kshs.6,000,000 (general damages Kshs.5,000,000 and aggravated damages Kshs.1,000,000) is confirmed in favour of the appellant
  5. 5.The appellant shall also have costs of the High Court suit
On appeal from
High Court at Nairobi
H.C.C.C No. 89 of 2011
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Civil Procedure Act; appeal by way of retrial

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, "Honourable Musikari Kombo v Royal Media Services Limited", Case Analysis (2018). Civil Appeal No. 156 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/801/eng@2018-02-09

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