Nation Media Group v Gideon Mose Onchwati & Kenya Oil Company Limited [2019] KECA 255 (KLR)
The bottom line
#Kenya's Court of Appeal held Nation Media liable for a defamatory paid advert but cut the payout from Kshs.15.5 million to Kshs.4.5 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Onchwati's notice of motion to deem the notice of appeal withdrawn under Rule 83 should be allowed
- 2.Whether the notices published by NMG concerning Onchwati were defamatory so as to found liability in libel
- 3.Whether NMG as a publisher of a paid-up advertisement supplied by another is liable in defamation
- 4.Whether the publication was actuated by malice
- 5.Whether the award of Kshs.15,500,000 in general, exemplary and other damages was manifestly excessive
- 6.Whether the award of Kshs.12,000,000 as exemplary damages was justified
- 7.Whether the award of Kshs.500,000 in lieu of an apology was a permissible head of damages
Key legal issues
#Whether the public notices were defamatory
Yes. The notice, which carried Onchwati's photograph, ID number and a call to report his whereabouts to the police, portrayed him as a fugitive and dishonest person, lowering him in the estimation of right-thinking members of society.
The court re-appraised the notice as a first appellate court and found it went beyond announcing a resignation: it implied dishonesty, that Onchwati was in hiding with something to hide, and invited the public to snitch on him to the police. The natural and ordinary meaning was defamatory, and the learned Judge was entitled to find the meanings pleaded proved.
Whether NMG, an innocent disseminator of a paid advertisement, is liable
NMG is fully liable. Publishing another's content does not exempt a newspaper from defamation liability, and the failure to verify and the procurement of indemnity from KOC evidenced culpability.
The court held that in so far as NMG published the notice it became fully culpable in defamation. Press freedom does not confer a licence to harm reputation. NMG made no serious attempt to verify the truth of the notice, knew it was contested by Onchwati, protected itself by obtaining indemnity from KOC, and refused to carry a paid rebuttal — all indicating malice.
Whether malice was established
Malice was properly inferable from NMG's conduct: publishing despite being told the notice was false, obtaining indemnity, and refusing the rebuttal.
Following PHINEHAS NYAGA v GITOBU IMANYARA and GODWIN WACHIRA v OKOTH, malice may be inferred from the defendant's conduct in the course of proceedings; failure to inquire into the facts is itself evidence from which malice may properly be drawn, as is evidence that the defendant knew the statement was false and did not care whether it was true.
Quantum of damages
General damages of Kshs.3,000,000 upheld; exemplary damages of Kshs.12,000,000 set aside and replaced with Kshs.1,500,000 aggravated damages; Kshs.500,000 in lieu of apology set aside.
Awards must be proportionate and comparable across similarly situated persons. The total of Kshs.15,500,000 far exceeded comparable awards to well-known public figures. Exemplary damages did not lie because NMG's conduct, though not laudable, was not so reprehensible or mercenary as to warrant punishment; the conduct relied on justified aggravated damages. Refusal to apologise is not a standalone award.
Rule 83 vs Rule 84 of the Court of Appeal Rules
The two rules apply sequentially: Rule 83 governs notices of appeal not followed by institution of an appeal; Rule 84, with its thirty-day timeline, governs striking out a record of appeal actually filed out of time.
Where an appeal has been instituted by lodgement of the record, even if late, it would be an absurdity to deem the notice withdrawn for non-institution of that already instituted. Onchwati should have invoked Rule 84 within thirty days of service of the record; his motion, brought more than a year later, was misconceived and dismissed with no orders as to costs.
Legal principles established
#- A publisher who publishes an item supplied by another is fully liable in defamation if it fails to check whether the item contains libellous matter, and publishes at its own risk.
- Where a notice of appeal has been followed by actual institution of an appeal by lodging a record of appeal, Rule 83 (deeming withdrawal) does not apply; Rule 84 within thirty days of service of the record is the correct avenue for striking out.
- Exemplary damages are awarded only in limited categories and are punitive, not compensatory; refusal to apologise or persistence in a defence goes to aggravated damages, not exemplary damages.
- A refusal to apologise is not a standalone head of award but a factor in general or aggravated damages.
Court orders
#- 1.Onchwati's notice of motion seeking to deem the notice of appeal withdrawn under Rule 83 dismissed with no orders as to costs
- 2.The award of Kshs.3,000,000 general damages upheld
- 3.Onchwati awarded a further Kshs.1,500,000 as aggravated damages
- 4.The award of Kshs.12,000,000 exemplary damages set aside
- 5.The award of Kshs.500,000 in lieu of an apology set aside
- 6.Each party to bear its own costs of the appeal; Onchwati to have the costs of the High Court suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 140 of 2008
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules (Rule 29(1) of the Court of Appeal Rules invoked); Appellate Jurisdiction Act, sections 3A and 3B
Relief refused
#NMG's prayer to dismiss Onchwati's suit in its entirety and set aside the whole judgment
Liability for defamation was properly established; only the quantum of damages was interfered with
Onchwati's application to deem the notice of appeal withdrawn under Rule 83
Once an appeal had been instituted by lodging the record of appeal, Rule 84 and not Rule 83 applies; the motion was misconceived
Costs
The parties shall bear their own costs of this appeal while Onchwati shall have the costs of the High Court suit.
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.
The notice was vintage defamation and it placed a scarlet mark and stain on Onchwati’s reputation and character.
in so far as NMG published the notice, it became fully culpable in defamation
when a publisher accepts an item for publication, it has a duty to see whether such item contains libellous matters, and that if it fails to discharge that duty, then it always publishes at its own risk.
exemplary damages are awardable in very rare instances where the conduct of the defendant is deserving of punishment, and they are meant to vindicate the law. They have nothing to do with compensating the plaintiff.
The two heads of damages are wholly different and distinct, and not interchangeable. One is compensatory, while the other is punitive, and the considerations justifying either are quite different
It seeks to deem the notice of appeal as withdrawn for non-institution of an appeal within time, instead of seeking a striking out of the record of appeal actually filed, for having been filed out of time.
In the premises, this appeal partially succeeds. The award of Kshs.3,000,000 general damages is upheld and Onchwati shall have a further Kshs.1,500,000 being aggravated damages.
The parties shall bear their own costs of this appeal while Onchwati shall have the costs of the High Court suit.
Issues in the judgment
#The judgment spells the case PHINEHAS NYAGATH -vs- GITOBU IMANYARA in one instance but PHINEHAS NYAGA -vs- GITOBU IMANYARA elsewhere in the same judgment.
Typographical error in case name - 'NATION MEWSPAPERS LIMITED' for 'NATION NEWSPAPERS LIMITED' in the same judgment.
The notice of claim against KOC is stated as issued 17th June 2009 but filed 22nd June 2019, an apparent internal date error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nation Media Group v Gideon Mose Onchwati & Kenya Oil Company Limited [2019] KECA 255 (KLR)", Case Analysis (2019). Civil Appeal No. 88 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/255/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.