Nation Media Group Limited & another v Nyabuti (Civil Appeal 113 of 2019) [2023] KECA 876 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that leaving an online article online is not contempt unless a court order required its removal or fresh publication occurred after the order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether personal service is required before one can be cited for contempt of court
- 2.Whether the appellants flouted the court order of December 23, 2015, i.e. whether there was further publication or republication of the allegedly offensive article
Key legal issues
#Scope of contempt: whether leaving an online defamatory article in place amounts to contempt of an order restraining further publication
It does not. The order of December 23, 2015 was a restraining order against further publication; the appellants published nothing fresh after the order, and no order requiring the article to be pulled down was ever made. The High Court therefore erred in finding the appellants guilty of contempt.
The court identified that the operative order merely restrained further republication of the offensive article. The respondent did not contest the appellants' assertion that no further publication was made after December 23, 2015. Absent an order directing removal of the online article and absent evidence of fresh publication, the ingredients of contempt of that particular order were not made out. The Court expressly found it unnecessary to determine the personal service issue once the contempt finding fell.
Standard of review on first appeal
The appeal is a first appeal, in which the Court reconsiders the evidence, evaluates it itself and draws its own conclusions, while making due allowance for not having seen or heard the witnesses.
Relying on Selle v Associated Motor Boat Co of Kenya & others, the Court restated that a first appeal is by way of retrial: the appellate court is not bound by the trial judge's findings of fact where the trial judge failed to take account of particular circumstances or probabilities, or where a finding is inconsistent with the evidence generally. The Court applied this to re-evaluate whether contempt was established.
Whether personal service of a court order is a precondition to a contempt finding
The Court expressly declined to decide this question as unnecessary, having allowed the appeal on the absence of any flouting of the order.
Counsel argued the service question extensively - the appellants relying on Woburn Estate Limited v Margaret Bashforth for the personal service requirement, and the respondent relying on Justus Kariuki Mate & another v Martin Nyaga Wambora & Another for dispensation of service. The Court, however, resolved the appeal on the publication issue and so did not pronounce on the correct standard of service for contempt.
Legal principles established
#- A person cannot be held guilty of contempt for continued publication where the court order restrained only further publication, the offending publication had appeared before the order and there is no evidence of fresh publication after the order.
- In a first appeal the Court of Appeal reconsiders and evaluates the evidence itself and draws its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.
Court orders
#- 1.The appeal is allowed
- 2.The orders of contempt issued on September 22, 2017 are set aside
- 3.The respondent's application dated June 21, 2016 is dismissed
- 4.The fine of Kshs 400,000.00 paid by the appellants be refunded to them
- 5.Costs of the appeal are awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal (appeal against a High Court ruling; not stated to arise from the Supreme Court or under Article 163(4))
Relief refused
#Commitment of the Directors of the appellants to civil jail for contempt
The contempt finding was overturned because there was no order directing the appellants to pull down the online publication and no evidence of further publication after December 23, 2015
Costs
Costs of the appeal awarded to the appellants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
there was no specific order directing the appellants to pull down the alleged ofiending publication and there being no evidence of further publication, we think the court erred in coming to the conclusion that the appellants were guilty of contempt
The upshot of the above is that we allow the appeal and set aside the orders of contempt issued on September 22, 2017 and dismiss the respondent’s application dated June 21, 2016; the fine of Kshs 400,000.00 paid by the appellants be refunded to them and costs of this appeal is awarded to the appellants.
Having come to the above conclusion, we do not consider it necessary to address the issue of whether there was service of the order upon the appellants.
Issues in the judgment
#Internal inconsistency in the date of the interlocutory ruling: the notice of motion of December 14, 2015 is stated to have been determined by a ruling of December 23, 2023, but everywhere else, including the contempt application and the court's own account, the date is December 23, 2015
The applicant is referred to as 'the appellant' in the description of the injunction application when it was the respondent who was the plaintiff and applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nation Media Group Limited & another v Nyabuti (Civil Appeal 113 of 2019) [2023] KECA 876 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/876/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.