Githongo v Murungaru
The bottom line
#Kenya's Court of Appeal confirmed John Githongo defamed Chris Murungaru but cut his damages bill from KShs.27 million to KShs.10 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the impugned publication was defamatory of the respondent
Yes. The appellant admitted originating the dossier and took no steps to verify truthfulness; the contents depicted the respondent as corrupt and dishonest, meeting the threshold of a defamatory imputation.
The Court adopted the Gatley definition of defamation and held the respondent proved that a reasonable reader would understand the publication as defamatory. The appellant admitted on oath he had no proof of corruption charges against the respondent, no traced proceeds, and relied only on unnamed colleagues' assertions. The trial Judge's conclusion that the words were defamatory was affirmed as the only logical conclusion on the record.
Whether the book 'It's Our Turn to Eat' was inadmissible hearsay under sections 35 and 36 of the Evidence Act
No. The book was admitted without objection, the appellant was cross-examined on it, admitted its contents were based on his own dossier, and its admissibility fell within the admission provisions (sections 18, 20, 24 and 61).
The Court held there was no obligation on the Judge to observe the section 35 prerequisites where the appellant's advocate raised no objection to production. The appellant was not prejudiced: he admitted originating the dossier, giving an interview to the author, and reading the manuscript without objection. Sections 35(1)(b) prerequisites would only arise had the defence required the author to be called as a witness.
Whether there was publication and republication by the appellant
Yes. The appellant made known the dossier's contents to persons beyond the two original addressees, including Michela Wrong and media houses, which republished them.
Applying Pullman v Walter Hulls and Huth v Huth, the Court held publication may be direct or indirect through third parties, and a presumption of publication arises where a document is put in the way of being read by those through whose hands it passes. Had the appellant not granted interviews, publication would have ended with the original addressees, who never published it.
Whether the defences of qualified privilege, public interest and whistleblower protection were available
No. The appellant pleaded qualified privilege but did not demonstrate any of the Reynolds guidelines, took no steps to verify the contents, and the Constitution does not shield a whistleblower from liability for unrestrained defamatory publication.
The Court distilled the Reynolds guidelines and the overriding objectives for qualified privilege, finding the appellant pointed to none of them. He admitted on oath he had no investigative mandate to verify the truthfulness of the contents. Dissemination beyond the initial addressees entitled to receive the communication destroyed the mutuality of duty and interest on which qualified privilege rests.
Whether the trial Judge erred in failing to consider transcriptions of taped conversations
The Judge did fail to mention them, but no prejudice was occasioned because the transcriptions had no probative value capable of altering the outcome.
The Court agreed the Judge made no mention of the tendered transcriptions. However, applying section 78A(3) of the Evidence Act on the weight of electronic and digital evidence, the conversations were said to have been general, and no reason was given for the appellant's failure to call the government functionaries as witnesses. The appeal against liability was therefore dismissed.
Whether the awards of damages were excessive
Yes, in part. The awards were on the higher side and not commensurate with adequate compensation; general damages reduced from KShs.20,000,000 to KShs.7,000,000, aggravated from KShs.5,000,000 to KShs.2,000,000, and exemplary/punitive from KShs.2,000,000 to KShs.1,000,000.
The Court adopted the Johnson Evan Gicheru principles, the Jones v Pollard checklist, and surveyed its own recent awards (Nation Media Group v Nthenge; Musikari Kombo; Agnes Zani; Ruth Njiri James), which clustered around KShs.5,000,000 general damages. Doing the best it could on the peculiar circumstances, including the global reach of the publication and the respondent's standing, it found the trial awards inordinately high and substituted lower figures.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate and re-analyse the record and come to its own conclusion, bearing in mind the trial judge's advantage of seeing and assessing witnesses' demeanour
- An appellate court will not interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or a demonstrably wrong principle
- The Constitution of Kenya, 2010 does not shield a whistleblower from liability for defamatory publication made without restraint; qualified privilege is lost where the originator disseminates the matter beyond the persons entitled to receive it
- Failure to object to the mode of production of a document at trial, and absence of prejudice, preclude a successful hearsay objection on appeal under sections 35 and 36 of the Evidence Act
- An appellate court will interfere with an award of damages only on established grounds such as mistake of law, disregard of principle, irrelevant considerations, misapprehension of facts, or an inordinately high or low award
Court orders
#- 1.Appeal against liability dismissed
- 2.Award of damages by the trial court set aside and substituted: general damages KShs.7,000,000.00
- 3.Aggravated damages KShs.2,000,000.00
- 4.Punitive damages KShs.1,000,000.00
- 5.Costs of the proceedings both on appeal and in the trial court awarded
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- HCCC No. 44 of 2006
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, 2010, Article 164)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githongo v Murungaru", Case Analysis (2022). Civil Appeal 404 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/821/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.