J.p. Machira T/A Machira & Company Advocates v Wachira Waruru & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that fair, accurate newspaper reports of court cases held in chambers are protected from defamation claims.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 6 privilege extends to reports of proceedings conducted in chambers
Yes. Chamber proceedings are judicial proceedings and a fair and accurate report of them is absolutely privileged; 'open court proceedings' should not be read literally to exclude chambers
The court declined to follow the appellant's reading of the George Oraro decision, holding that judicial proceedings in Kenya are not private merely because held in chambers. It noted that shortage of courtrooms often compels judges to conduct proceedings in chambers, and that the common law rule on pleadings cannot override the express statutory language of Section 6.
Whether the three articles were fair and accurate reports
Yes. Comparison of the articles with the transcripts of proceedings showed they were faithful, substantially accurate accounts of what was submitted in court
Although the respondents called no witnesses, the articles and transcripts were produced by the appellant himself, satisfying the burden. The court compared each article with the record and found the substance faithful; the reports were not verbatim but gave a correct and just impression, and a follow-up report carrying the appellant's side was published.
Whether costs were properly awarded to the respondents despite their not calling evidence
Yes. Costs follow the event and the discretion was not shown to have been wrongly exercised
The court noted the respondents defended the suit even without calling witnesses, and found nothing to demonstrate that the trial judge misdirected himself in awarding them costs; the order was consistent with the general principle that costs follow the event.
The duty of a first appellate court on facts
A first appeal is by way of retrial; the court is not bound by the trial court's findings but must have regard to its inability to see or hear the witnesses
Relying on Selle v Associated Motor Boat Co Ltd, the court restated the settled principle that it must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.
Legal principles established
#- Judicial proceedings conducted in chambers are not necessarily private; a fair and accurate newspaper report of such proceedings is absolutely privileged under Section 6 of the Defamation Act
- A privileged report need not be verbatim; an abridged or condensed report is privileged if it gives a correct and just impression of what took place in court
- The onus of proving that a report is fair and accurate lies on the defendant, but it is sufficient if this clearly appears from the claimant's own evidence
- The common law rule denying privilege to reports of pleadings not yet canvassed in open court cannot override the express statutory privilege in the Defamation Act
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2002 of 2000
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's statutory appellate powers over High Court civil decisions
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- J.p. Machira T/A Machira & Company Advocates v Wangethi Mwangi & 1 other[2023] KECA 228 (KLR)3 Mar 2023
Cite this brief
#Cite this brief
Caselaw, "J.p. Machira T/A Machira & Company Advocates v Wachira Waruru & 1 other", Case Analysis (2020). Civil Appeal No. 102 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/749/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.