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Court of AppealPartially AllowedCourt of Appeal Civil Appeal (HCCC No 275 of 2014 appeal)· [2023] KECA 89 (KLR)

Nation Media Group Limited & another v Wambui & another (Civil Appeal 270 of 2018) [2023] KECA 89 (KLR)

Court of Appeal of Kenya
3 February 2022
HOHannah OkwenguHOH. A. OmondiJMJ. Mativo
3,610 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a Kshs.6 million defamation payout against Nation Media Group, ruling the claimants proved no reputational harm.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal against the judgment of Sergon (J) in HCCC No 275 of 2014, delivered on 20 July 2017, which found the appellants (a media house and the author of an article) liable in defamation for a January 2014 Sunday Nation story captioned 'crime of the west stalks Kenya as oil painting vanish', awarding each respondent Kshs.2,500,000 in general damages and Kshs.500,000 in exemplary damages and ordering an apology. The respondents had obtained interlocutory judgment and proved their claim at formal proof. The Court of Appeal identified two issues: whether the respondents were defamed, and whether the damages were inordinately high. Applying the objective reasonable-reader test, the Court held that reading the publication in its entirety it was not defamatory of the respondents, who did not deny its contents, called no other witnesses, and tendered no uncontroverted evidence of reputational harm. On quantum, the Court found the general damages excessive: neither respondent produced accounts of business loss, and the trial court failed to consider the respondents' standing. On exemplary damages, the Court distinguished aggravated from exemplary damages, held that media publication in the ordinary course of business does not suffice - the publication must be intended to make a specific profit - and found the award unmerited. The Court allowed the appeal, set aside the High Court judgment in its entirety, dismissed the respondents' suit with costs, and awarded the appellants the costs of the appeal. The judgment binds subordinate courts and the High Court on the objective test for defamation, the evidential burden on claimants, and the restricted basis for exemplary damages against publishers.

Key legal issues

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01

Whether the publication was defamatory of the respondents

Holding

Reading the publication in its entirety, it was not defamatory of the respondents; the defamatory meaning was not clear and the respondents led no uncontroverted evidence of reputational harm

Reasoning

The court applied the objective reasonable-reader test. The article alleged the painting was left in a guest house and that a driver took it for safekeeping; it used 'alleged'. The respondents did not deny the contents, did not call other witnesses, and did not show how their reputation was affected in the estimation of right-thinking members of society.

p. 5
02

Whether the general damages award of Kshs.2,500,000.00 each was excessive

Holding

The award was excessive; the trial court acted on wrong principles and ignored relevant factors including the respondents' standing and lack of documentary proof of loss

Reasoning

Neither respondent produced profit and loss statements nor called witnesses to show the publication's effect on their businesses. The trial court also failed to consider the respondents' standing, fame, recognition, credit and reputation. The gravity of the libel and extent of publication must be the most important factors in assessment.

p. 6
03

Distinction between aggravated and exemplary damages and entitlement to exemplary damages

Holding

Exemplary damages punish the defendant and require proof of recklessness or knowledge that publication was tortious, coupled with pursuit of specific profit; aggravated damages compensate for increased distress from the defendant's conduct. The respondents proved neither basis.

Reasoning

Exemplary damages arise only in three categories: oppressive arbitrary or unconstitutional action by government servants; conduct calculated to make the defendant a profit; or statutory authorisation. As a media house, the appellants' ordinary course of business does not suffice; publication must be intended to make a specific profit, which was not proved.

p. 7
04

Mandate of a first appellate court

Holding

As a first appellate court, the Court is duty-bound to re-evaluate the evidence on record and come to its own independent conclusions

Reasoning

Citing Rule 29 of the Court of Appeal Rules and prior decisions, the court reaffirmed that a first appeal is by way of rehearing: the court must re-evaluate the evidence and draw its own conclusions, though not forgetting it neither saw nor heard the witnesses.

p. 4

Legal principles established

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  • The test for whether a statement is defamatory is objective, based on what a reasonable person would perceive, not the publisher's intention
  • A claimant in defamation must tender evidence of how the publication affected them in the eyes of right-thinking members of society; mere publication without such proof does not establish defamation
  • Exemplary damages in libel require proof of recklessness or knowledge of tortiousness coupled with pursuit of specific profit; an intention to make ordinary business profit is insufficient
  • A first appellate court has a primary duty to re-evaluate the evidence and reach its own independent conclusion

Court orders

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  1. 1.The judgment of the High Court entered in favour of the respondents is set aside in its entirety and substituted with an order dismissing the respondents' suit with costs
  2. 2.Costs of the appeal are awarded to the appellants

Authorities

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Legislation

  • Court of Appeal RulesRule 29

Cases cited (16)

  • Wycliffe S. Swanya v Toyota East Africa Ltd & another
    Civil Appeal No. 70 of 2008 [2009] eKLR
  • Daniel N. Ngaruiya v KGGCU Limited
    CA 281 of 1998 (2000) eKLR
  • Gilbert v Smith
    (1976) 2 c.d. 686
  • Tea Board of Kenya v Gideon Asirigwas Mbagaya
  • Kemfro Africa Limited T/A Meru Express Service, Gathogo Kanini v AM Lubia and Olive Lubia
    [1982-88] 1 KAR 727
  • Butt v Khan
    Civil Appeal No. 40 of 1977
  • CAM v Royal Media Services Limited
    Civil Appeal No. 28 of 2005 [2013] eKLR
  • Abok James Odera t/a A.J. Oders & Associates v John Patrick Machira t/a Machira & Company Advocates
    [2013] eKLR
  • Selina Patel & another v Dhiranji V. Patel
    [2019] eKLR
  • John Ward v Standard Ltd
    HCCC 1062 of 2005
  • Nation Media Group & another v Hon. Chirau Mwakwere
    Civil Appeal No. 224 of 2010 (unreported)
  • SMW v ZWM
    [2015] eKLR
  • Standard Limited v G.N. T/A Kagia & Company Advocates
    Civil Appeal No. 115 of 2003
  • John v MGM Ltd
    (1997) Q.B 586
  • John v MG Ltd
    [1996] 1 All E.R. 35
  • Bank of Baroda (K) Limited v Timwood Products Ltd
    [2008] 236
On appeal from
High Court of Kenya
HCCC No 275 of 2014
Jurisdiction invoked
First appeal under Rule 29 of the Court of Appeal Rules

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, "Nation Media Group Limited & another v Wambui & another (Civil Appeal 270 of 2018) [2023] KECA 89 (KLR)", Case Analysis (2022). Court of Appeal Civil Appeal (HCCC No 275 of 2014 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/89/eng@2023-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.