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Court of AppealPartially AllowedCivil Appeal No 114 of 2019· [2023] KECA 877 (KLR)

Nation Media Group Limited & another v Nyabuti (Civil Appeal 114 of 2019) [2023] KECA 877 (KLR)

Court of Appeal
7 July 2023
ASAsike-MakhandiaFSF. SichaHOH. A. Omondi
2,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that an injunction against 'further publication' of a defamatory article does not require the media house to delete the article already published.

What this practically means

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Executive summary

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This is a first appeal against a High Court ruling of October 25, 2018 by Njuguna, J, which allowed the respondent's application to review the ruling of September 22, 2017. The original contempt ruling had found the defendants (Nation Media Group Limited and David Herbling) guilty of contempt of the injunction of December 23, 2015 and fined each Kshs 200,000. The review ruling extended that finding to seventeen directors of the first appellant on the basis of an error apparent on the face of the record. The appellants, on nine grounds collapsed into three, argued that the directors were not parties to the suit, that there was no error apparent on the record, no personal service, and no further publication after the injunctive order. The respondent maintained that the directors were the directing mind and will of the company and that personal service was no longer a strict requirement, citing the Wambora decision. The Court of Appeal, applying its findings in the companion Civil Appeal No 115 of 2019 mutatis mutandis and making findings on the common publication issue with Civil Appeal No 113 of 2019, held that the December 23, 2015 injunction was prospective only, restraining further publication, with no order to pull down the article of December 15, 2015, and that there was no evidence of further publication after the order. The court set aside the review orders of October 25, 2018, dismissed the respondent's application of October 2, 2017 with costs, and ordered the respondent to bear the costs of the appeal.

Key legal issues

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01

Scope of an injunction against 'further publication'

Holding

The order of December 23, 2015 restrained only further publication; it contained no order to pull down the already-published article, so continued presence of the article online was not contempt.

Reasoning

The court examined both the substantive suit's prayer and the notice of motion, noting the language of 'further publication' in each. Since the injunction was prospective only, failure to remove the December 15, 2015 article could not constitute disobedience. Without evidence of post-order publication, contempt could not be sustained.

p. 5
02

Validity of the review order of October 25, 2018 extending contempt to the seventeen directors

Holding

The review order, which extended the contempt finding to the directors of the first appellant, was to be set aside; the court's findings in Civil Appeal No 115 of 2019 applied mutatis mutandis.

Reasoning

The Court of Appeal declined to restate fully the reasons given in Civil Appeal No 115 of 2019, which challenged the same order of October 25, 2018. It held that its conclusions in that appeal applied equally here, and added the absence of evidence of further publication as an independent basis for setting aside the review order.

p. 5

Legal principles established

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  • An order of injunction against 'further publication' does not extend to compelling the pulling down of an article already published; no contempt arises absent evidence of further publication after the order.
  • On a first appeal, the Court of Appeal reconsiders and evaluates the evidence itself and draws its own conclusions, subject to the usual allowances for not having seen or heard the witnesses.

Court orders

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  1. 1.The orders of review issued on October 25, 2018 are set aside
  2. 2.The respondent's application dated October 2, 2017 is dismissed with costs
  3. 3.Costs of this appeal to be borne by the respondent

Authorities

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Cases cited (3)

  • Ochino & Another v Okombo & 4 others
    [1989] KLR
  • Justus Kariuki Mate & another v Martin Nyaga Wambora & another
    [2014] eKLR
  • Selle v Associated Motor Boat Co. of Kenya & others
    [1968] EA 123
On appeal from
High Court
null
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment frames it as 'a first appeal'; no specific provision is quoted)

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 Nyabuti (Civil Appeal 114 of 2019) [2023] KECA 877 (KLR)", Case Analysis (2023). Civil Appeal No 114 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/877/eng@2023-07-07

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