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Court of AppealDismissedCourt of Appeal at Kisumu, Civil Appeal (number not stated in judgment)· [2021] KECA 107 (KLR)

Nyamunga & 2 others v Onsongo (Civil Appeal 86 of 2018) [2021] KECA 107 (KLR)

Court of Appeal of Kenya
22 October 2021
3,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellants, beneficiaries and an administrator of the estate of Manason Ogendo Bodo in Kisumu High Court Succession Cause 213 of 1991, wrote two identical letters dated 18th and 19th February 2014 to the Registrar of the High Court, copied to the Chief Justice and the Registrar in Nairobi, complaining of the slow handling of the succession cause, the disappearance of documents from the court file, and 'unusual interest' by several Kisumu lawyers, adding that they suspected bribery was taking place and naming the firm associated with the respondent, an advocate of the High Court who acted for one of the administrators. The respondent sued for defamation; E.N. Maina, J. found liability and awarded Ksh.2,500,000 general damages and Ksh.500,000 aggravated damages. On appeal, the Court of Appeal (S. ole Kantai, H. Omondi and Mumbi Ngugi, JJ.A) re-appraised the evidence under Rule 29 and affirmed. It held that while the appellants were entitled to complain of delay and file misplacement, the letters went further and alleged corruption against named lawyers for whom the appellants had no evidence. The pleaded defences of justification and fair comment under Sections 14 and 15 of the Defamation Act failed because no evidence was led on them. Applying Butt v Khan, the appellate court declined to disturb the awards: the general damages were not excessive, and the aggravated damages were justified by the appellants' adamant refusal to apologise. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Defamation by letters alleging bribery against a named advocate

Holding

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.

Reasoning

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.

p. 5
02

Failure to prove the pleaded defences of justification and fair comment

Holding

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.

Reasoning

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.

p. 5
03

Quantum of damages

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 29
  • Defamation ActSections 14 and 15
  • Constitution of Kenya, 2010Article 35

Cases cited (5)

  • Selle & Another v Associated Motor Boat Company Limited & Others
    [1968] EA 123
  • Kenya Tea Development Agency Limited v Benson Ondimu Masese t/a B.O. Masese & Company Advocates
    [2008] eKLR
  • Loise Wanjiku Kagunda v Julius Gachau Mwangi
    Civil Appeal No. 142 of 2003 (ur)
  • Gitobu Imanyara & 2 Others v Attorney General
    [2016] eKLR
  • Butt v Khan
    [1981] KLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.