Nyamunga & 2 others v Onsongo (Civil Appeal 86 of 2018) [2021] KECA 107 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that accusing a lawyer of corruption without evidence is defamatory and upheld a Ksh.3 million award.
What this practically means
#Executive summary
#Key legal issues
#Defamation by letters alleging bribery against a named advocate
The letters went beyond a legitimate complaint about delay or loss of the court file and alleged that lawyers, including the respondent, had an unusual interest and that bribery was suspected; the appellants admitted they had no evidence of corruption, so the words were defamatory of the respondent.
The court found as fact that 'Onsongo' referred to the respondent. The letters were unmarked and unconfidential, addressed to the Registrar with copies to the Chief Justice and Registrar, and could be read by all with access to the registry. Beneficiaries may complain of delay, but may not allege corruption of named lawyers without evidence.
Failure to prove the pleaded defences of justification and fair comment
Although the appellants pleaded justification and fair comment under Sections 14 and 15 of the Defamation Act, no evidence was led on either defence and they therefore failed.
The defence admitted publication but denied defamatory meaning, relying on qualified privilege, justification and fair comment. At trial the appellants confirmed authorship but admitted having no evidence of the corruption they alleged; no evidence was adduced on justification or fair comment, so the defences could not sustain them.
Quantum of damages
The general damages award of Ksh.2,500,000 and aggravated damages of Ksh.500,000 were not excessive; aggravated damages were justified by the appellants' refusal to apologise.
Assessment of damages is a judicial discretion which an appellate court interferes with only where the judge acted on wrong principles, misapprehended the facts, or made a wholly erroneous estimate. The Judge considered the respondent's standing and the appellants' insistence on justification; the refusal to apologise supported aggravated damages.
Legal principles established
#- On a first appeal the Court of Appeal has power to re-appraise the evidence and draw its own inferences of fact, while making due allowance for not having seen or heard the witnesses.
- 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 or misapprehended the evidence in a material respect.
- A letter alleging corruption against a named lawyer, even when written to judicial officers as a complaint, is defamatory where the writer has no evidence of the corruption alleged.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Kisumu
- Defamation suit (number not stated in judgment)
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 29 of the Court of Appeal Rules from the High Court acting in its original jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamunga & 2 others v Onsongo (Civil Appeal 86 of 2018) [2021] KECA 107 (KLR)", Case Analysis (2021). Court of Appeal at Kisumu, Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/107/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.