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Court of AppealDismissedCivil Appeals Nos. 133 and 153 of 2018 (Consolidated)· [2023] KECA 1444 (KLR)

Ongwen & 5 others v Omollo & 6 others (Civil Appeal 133 & 150 of 2018 (Consolidated)) [2023] KECA 1444 (KLR)

Court of Appeal of Kenya
24 November 2023
7,893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Kisumu (Tuiyott, JA writing the leading judgment; Kiage, JA and Mumbi Ngugi, JA concurring) dismissing two consolidated appeals (Nos. 133 and 153 of 2018) against the High Court (EN Maina, J) decision of December 21, 2017, which had found six appellants liable in defamation of Anne Omollo, a Judge of the High Court, and awarded her Kshs 6,000,000 jointly and severally, plus an order that the Star publish an apology for three consecutive days. The appeal arose from an ODM taskforce report finding that Kshs 1,620,000 had been remitted by Factor Connect to the account of a 'senior jurist' friend of the Kisumu County Assembly Speaker, and a Star article reporting the Judge's denial of the allegation. The Court held that the taskforce report and the newspaper article were inseparable, since the article accurately reflected the report and merely added the denial, and that the essentials of defamation were established: the statement concerned the respondent, was defamatory, and was false, no money having in fact been paid to her. The taskforce had power to interview the respondent, as its own member conceded. The Star's qualified privilege defence failed: by identifying the Judge rather than engaging in pure reportage, the reporter assumed a duty of elaborate verification which sending an SMS did not discharge. The damages award was upheld; the two sets of defamers could not be separated without artificial dissection, and the Star, having failed responsible journalism, was as culpable under the repetition rule. The apology order was also upheld as neither onerous nor costly. The consolidated appeals were dismissed with costs to the respondent, affirming the judgment below in its entirety.

Key legal issues

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01

Whether the taskforce report and the Star article should be read together

Holding

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.

Reasoning

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.

p. 12
02

Whether the essentials of defamation were established

Holding

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.

Reasoning

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.

p. 14
03

Whether the taskforce had power to interview the respondent

Holding

Yes; the 4th appellant's own evidence confirmed that persons adversely mentioned who were not County Assembly members could be called to clarify.

Reasoning

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.

p. 14
04

Whether the defence of qualified privilege / responsible journalism succeeded for the Star and its reporter

Holding

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.

Reasoning

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.

p. 4
05

Whether the award of Kshs 6,000,000 and the apology order were excessive

Holding

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.

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 1.The consolidated appeals (Civil Appeals Nos. 133 and 153 of 2018) be and are hereby dismissed.
  2. 2.Costs of the appeals awarded to the respondent.
  3. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.