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Court of AppealDismissedCivil Appeal No. 32 of 2017· [2018] KECA 843 (KLR)

Benedict Ombiro v The Board of Governors Kenya Utalii College & Another

Court of Appeal
16 February 2018
EGE.M. GithinjiRNR.N. NambuyeHOH.M. Okwengu
3,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that job references given honestly by former employers are protected, and defamation plaintiffs must prove their own case.

What this practically means

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Executive summary

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The appellant, a former employee of Kenya Utalii College, was dismissed in 1990. When a prospective employer, Lonrho Hotels (K) Ltd, sent the College a questionnaire seeking a character appraisal, the 2nd respondent, on the 1st respondent's instructions, filled it in, describing the appellant as a person of erratic temper. The trial magistrate awarded him Kshs. 800,000 in defamation damages. On first appeal, Sergon J reversed that judgment, holding that the publication was privileged, made without malice, and that the award was excessive; he dismissed the suit, substituting an award of Kshs. 200,000 had the appeal failed. The appellant mounted a second appeal on three clustered grounds: that the Judge erred in treating the questionnaire as justification, in disturbing the trial findings without contrary evidence, and in setting aside the award. The Court of Appeal, restricted to matters of law, framed two issues: misapprehension of the evidence on the questionnaire, and interference with quantum. It held that the burden of proving defamation lay on the appellant under sections 107-109 of the Evidence Act, that qualified privilege attached to the reference given on a restricted occasion without demonstrated malice, and that the Judge properly applied Butt v Khan in revising the excessive award downwards, considering comparables and the low scale of publication. The appeal was dismissed. This judgment binds subordinate courts and the High Court on the second-appeal mandate, the burden of proof in defamation, and qualified privilege for employment references.

Key legal issues

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01

Whether the High Court erred in using the questionnaire produced by the appellant to find the publication not defamatory despite the respondents tendering no evidence

Holding

No error. The appellant bore the burden of proving defamation on a balance of probability, and the Judge was entitled to act on the one-sided evidence on the record.

Reasoning

The respondents tendered no evidence, but that default did not relieve the appellant of the statutory burden under sections 107, 108 and 109 of the Evidence Act. The Judge properly re-evaluated the record, considered the occasion of qualified privilege, the single restricted publication and absence of demonstrated malice, and correctly found no misapprehension of evidence or law.

p. 5
02

Whether the High Court erred in disturbing the trial court's award of Kshs. 800,000 in general damages

Holding

No error. The Judge applied the correct principles, considered comparables and the low, restricted scale of publication, and was entitled to revise the award downwards.

Reasoning

Guided by Butt v Khan, the Judge considered relevant factors: the publication was restricted to few persons, the respondents had a moral duty to supply the information, and damages must be commensurate with injury. Low-scale publication warrants damages on a lower scale, and the trial award was above comparable awards.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal is restricted to matters of law and will not interfere with findings of fact of the two lower courts.
  • The burden of proving that a publication is defamatory rests on the plaintiff, even where the defendant adduces no evidence.
  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles.
  • A former employer's reference to a prospective employer, made without malice, may attract qualified privilege.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment of the High Court setting aside the trial court's award and dismissing the appellant's defamation suit stands

Authorities

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Legislation

  • Evidence Actsection 107
  • Evidence Actsection 108
  • Evidence Actsection 109

Cases cited (13)

  • Hellen Makone versus Francis Kahos and another
    [2004] eKLR

    Qualified privilege arises where a prospective employer inquires of a former employer regarding an employee, absent malice.

  • University of Nairobi versus Mbuthia
    [1985]/[1988] eKLR

    A publication is privileged where author and recipient each have a corresponding interest or legal, social or moral duty.

  • James Omenda Abusa Versus Ludia Atieno Onyango
    [2015] eKLR

    Comparable defamation award of Kshs. 100,000 used to assess quantum.

  • Linus Nganga Kiongo versus Town Council of Kikuyu
    HCCC No. 79 of 2011

    Where a party adduces no evidence in support of pleadings, the pleadings remain mere statements of facts.

  • Kemfro Africa Limited t/a Meru Express Services Gathogo Kanini versus A.M. Libia and Olive Lubia
    [1982-88] 1 KLR

    Parameters guiding an appellate court when interfering with a trial court's award of damages.

  • Gibson Ombonya Shiraku versus British Airways PLC
    [2014] KLR

    A defendant's failure to adduce evidence does not absolve the plaintiff from proving the case on a balance of probability.

  • Peter Maina Ndirangu t/a Express Service Agency versus Standard Group Limited
    [2016] eKLR

    Approved Shiraku on the unchanged burden and standard of proof where the defendant adduces no evidence.

  • Phinehas Nyagah versus Gitobu Imanyara
    [2013] eKLR

    Malice may be found in the publication itself if the language is utterly beyond or disproportional to the facts.

  • Bedan Moses Kinyangu Mbae versus Robinson Njagi Gachogu
    [2007] eKLR

    Presumption of privilege for an employment appraisal report written by a senior manager to a recipient entitled to receive it.

  • Joseph Njogu Kamunge versus Charles Muriuki Gachari
    [2016] eKLR

    Factors for assessing defamation damages: plaintiff's standing, extent of publication, apology, conduct of defendant; awards must be fairly compensatory.

  • Namalwa Christine Masinde versus National Bank of Kenya Ltd
    [2016] eKLR

    Award revisions downward where trial court goes overboard in assessing damages.

  • Onyango & Another Vs. Luwayi
    [1986] KLR 513

    Second appellate court will not interfere with findings of fact unless the lower courts misapprehended the evidence or erred on incorrect bases.

  • Butt versus Khan
    [1982-88] 1 KLR 1

    Appellate court will not disturb damages unless inordinately high or low, or judge proceeded on wrong principles or misapprehended evidence.

On appeal from
High Court of Kenya at Nairobi
HCCA No. 450 of 2012
Jurisdiction invoked
Second appeal to the Court of Appeal restricted to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Benedict Ombiro v The Board of Governors Kenya Utalii College & Another", Case Analysis (2018). Civil Appeal No. 32 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/843/eng@2018-02-16

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