CMM (Suing as next friends of and on behalf of CWM & 6 others) & 6 others v Standard Group & 4 others
The bottom line
#Kenya's Court of Appeal ruled that media can publish minors' identities in criminal cases unless someone proves privacy protection is genuinely necessary.
What this practically means
#Executive summary
#Key legal issues
#Whether publication of minors' identities in school arson coverage violated their rights to privacy and the best-interest-of-the-child principle
No violation: the publication was a matter of public interest given the national arson crisis, and the minors' expectation of privacy was not guaranteed.
The court held open justice is the general rule; the media enjoy rights under Articles 33, 34 and 50 to attend and report public trials. The best-interest principle and Section 76 of the Children Act protect minors, but the party seeking restriction must invoke and establish it before the trial court with clear and cogent evidence. Given decades of school arson causing loss of life, the publication served public interest and no real, substantial risk of prejudice was shown.
Whether the trial judge applied wrong principles by treating the petition as a defamation suit and requiring proof of damage
The judge applied correct principles; proof of damage is a prerequisite to an award of compensatory damages for constitutional violations.
Relying on Gitobu Imanyara and Alphie Subiah, the court affirmed that the burden of proving violation and consequential damage rests on the claimant under sections 107-109 of the Evidence Act. Concepts of justification, absence of malice and public interest are not confined to defamation. The appellants placed no evidence of damage before the court, and the first appellant could not even recall most of the minors' names.
Whether the trial judge failed to give due regard to the evidence
He did not; he considered the evidence, applied Article 24 factors and struck a balance between competing rights.
Applying the Selle and Peters appellate standards, the court found nothing objectionable in the judge's course. There was no evidence linking publication of identities to the adverse effects claimed; any distress flowed from the criminal charges themselves, and the publications were removed from circulation.
Legal principles established
#- A minor has, by virtue of age, at least an arguable reasonable expectation of privacy in criminal proceedings, but that expectation is not a guarantee and is only the first step in a balancing exercise.
- Open justice is the general rule; the party seeking to restrict it bears the burden of establishing necessity on clear and cogent evidence or statutory backing, and must set the restriction in motion before the trial court.
- Constitutional rights are reconciled by recognising mutual limitations, not by weighing the relative value of one right against another.
- Damage must first be shown as a result of a breach of a constitutional right before a court can exercise its discretion to award compensatory damages.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.No orders on costs
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 56 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (constitutional petition); appellate review of evidence and law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CMM (Suing as next friends of and on behalf of CWM & 6 others) & 6 others v Standard Group & 4 others", Case Analysis (2022). Civil Appeal 296 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/586/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.