Ongwen & 5 others v Omollo & 6 others (Civil Appeal 133 & 150 of 2018 (Consolidated)) [2023] KECA 1444 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs 6 million defamation award against six parties, ruling that a newspaper republishing a defamatory report is just as liable as its author.
What this practically means
#Executive summary
#Key legal issues
#Whether the taskforce report and the Star article should be read together
The two publications are inseparable; the Star article accurately reflected the taskforce report and merely added the respondent's denial, so the taskforce members cannot disassociate themselves from the newspaper publication.
The evidence, including the 4th appellant's testimony, established that the Anne Omollo referred to in the taskforce report was the respondent, a Judge and hence the 'senior jurist'. The Star did not distort the report by identifying her as a Judge or describing the payment as irregular, since that portion of the report dealt with misappropriation of Assembly resources. The report was made available to the media, creating the nexus between the two publications.
Whether the essentials of defamation were established
Yes. The statement was of and concerning the respondent, was defamatory in that it exposed her to contempt or ridicule, and was false since no money was in fact paid to her by Factor Connect.
It is not essential that the claimant be named; it suffices that the publication inescapably points to the claimant. The 4th appellant himself believed the Anne Omollo in the report was the respondent. A claimant's denial of the truth of a publication does not mean the publication is not of and concerning her. Character witnesses testified that despite the denial, the respondent was exposed to contempt or ridicule.
Whether the taskforce had power to interview the respondent
Yes; the 4th appellant's own evidence confirmed that persons adversely mentioned who were not County Assembly members could be called to clarify.
The appellants' submission that the taskforce was limited to Assembly members and staff was contradicted by the 4th appellant's own testimony that the taskforce had power to call persons adversely mentioned who were not Assembly members, and had at one time been minded to contact the respondent.
Whether the defence of qualified privilege / responsible journalism succeeded for the Star and its reporter
No. By naming the Judge rather than engaging in pure reportage, the reporter assumed a duty of more elaborate verification; sending an SMS was not enough.
The Reynolds factors, as explained in Flood, distinguish reportage from publication where the publisher adopts the allegation. Here the reporter verified that the jurist was Justice Anne Omollo and reported her denial, going beyond mere reportage, and thus bore a duty to verify whether the money was actually paid, which he did not do.
Whether the award of Kshs 6,000,000 and the apology order were excessive
No. The appellants failed to show the award was excessive; the two sets of defamers could not be segregated, the Dingle rule barred mitigation based on other publications, and the apology order was neither onerous nor costly to the Star.
The appellate court's latitude to interfere with damages is circumscribed. The 1st to 4th appellants merely regurgitated liability defences. The Star was as culpable as the taskforce under the repetition rule. The Star ignored the pre-suit demand for an apology and showed no prejudice from publishing one in its own newspaper.
Legal principles established
#- A first appellate court re-evaluates the evidence afresh and draws its own conclusions, while making due allowance for not having seen or heard the witnesses.
- A taskforce report and a newspaper article accurately reflecting and drawing attention to it are inseparable for purposes of defamation liability.
- Responsible journalism requires verification of information and, in appropriate cases, an opportunity for the claimant to comment; the required depth of verification increases where the publisher adopts or embellishes the allegation rather than engaging in pure reportage.
- Damages against two sets of defamers may in principle be separated only where they played distinct and disproportionate roles without artificial dissection; otherwise a joint global award is proper.
- An appellate court will not disturb a damages award unless it is so inordinately high or low as to be an entirely erroneous estimate or was arrived at on wrong principles or a misapprehension of the evidence.
Court orders
#- 1.The consolidated appeals (Civil Appeals Nos. 133 and 153 of 2018) be and are hereby dismissed.
- 2.Costs of the appeals awarded to the respondent.
- 3.The judgment of the High Court (including general damages of Kshs 6,000,000 jointly and severally against the six appellants and the order that the Star publish a written apology in its newspaper for three consecutive days) stands.
- On appeal from
- High Court of Kenya
- not stated
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court exercising original jurisdiction in a defamation claim (Constitution of Kenya, Article 164; Court of Appeal jurisdiction as first appellate court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Christopher Mudi & 2 others v Nation Media Group Limited[2024] KECA 20 (KLR)25 Jan 2024
Cite this brief
#Cite this brief
Caselaw, "Ongwen & 5 others v Omollo & 6 others (Civil Appeal 133 & 150 of 2018 (Consolidated)) [2023] KECA 1444 (KLR)", Case Analysis (2023). Civil Appeals Nos. 133 and 153 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1444/eng@2023-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.