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Court of AppealDismissedFirst appeal from the High Court (not separately numbered in the judgment)· [2024] KECA 118 (KLR)

Onyango v Standard Group Limited & 4 others (Civil Appeal 214 of 2018) [2024] KECA 118 (KLR)

Court of Appeal of Kenya
9 February 2024
8,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a KSh 30 million defamation claim against Standard Group, ruling the journalists' comments were fair comment on substantially true facts.

What this practically means

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Executive summary

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This is a first appeal from the High Court (Sergon, J.), which had dismissed a libel and slander claim by John Oriri Onyango, a state counsel, against the Standard Group and KTN journalists over the investigative documentaries 'The Untouchables' and 'Paruwanja La Mihadarati' concerning the 2004 cocaine haul and alleged State cover-up. The appellant sought general, aggravated and exemplary damages of KShs.30,000,000 and injunctions. The Court of Appeal (Kairu, Tuiyott and Lesiit, JJA), in a single unanimous judgment, re-evaluated the evidence as it must on a first appeal. It found that some broadcast allegations were outrightly false, notably that the appellant was not appointed to prosecute Criminal Case No. 3165 of 2004 in place of Dorcas Oduor, and the false impression that he prosecuted a second case before Magistrate Rose Ougo. Nevertheless, key facts were substantially true: the irregular clearance of his Netherlands trip through the Office of the President, the failure to deploy evidence gathered there, and his failure to return the journalist's calls. The Court held that the defence of fair comment under section 15 of the Defamation Act was established, the comment being on a matter of public interest and resting on a proved factual substratum, and that the appellant had not proved malice. It also held that the respondents' pleading objection could not be entertained absent notice under rule 96 of the Court of Appeal Rules. The Court affirmed the dismissal of the claim, declined to assess damages, and ordered the appellant to pay the costs of the appeal, departing from the High Court's order that each party bear its own costs.

Key legal issues

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01

Whether the defamatory imputations in the documentaries were true or protected by fair comment

Holding

Some allegations were outright false (e.g. that the appellant was not the prosecutor appointed in Criminal Case No. 3165 of 2004), but key allegations were substantially true and supported fair comment; the appeal on liability failed

Reasoning

The Court re-evaluated the evidence as a first appeal and found the broadcast wrongly implied the appellant prosecuted Criminal Case No. 93 of 2005, and falsely suggested he was retained in office as a reward. However, the circumstances of his Netherlands trip, the failure to use evidence gathered there, and his failure to return the journalist's calls made the inference of a cover-up fair comment on a matter of public interest.

p. 15
02

Pleading of defamatory words forming part of a longer publication

Holding

The respondents' objection that the plaint failed to isolate the defamatory passages could not succeed because no notice of grounds for affirming the decision under rule 96 was given; the trial judge also made no finding on it

Reasoning

The Court acknowledged Lord Denning MR's authority in DDSA Pharmaceuticals that a plaintiff must pick out the particular defamatory passages rather than throw a whole article at the court. But because the respondents did not comply with rule 96 by giving notice of grounds for affirming the decision on additional grounds, the point could not be pursued on appeal.

p. 7
03

Duty of the trial court to assess damages even where liability fails

Holding

The Court noted the argument but declined to disturb the outcome; it would have assessed damages under Rule 33 only had liability been established

Reasoning

Counsel for the appellant argued, citing Rodgers Abisai, that a trial court must assess damages irrespective of outcome, and the respondents appeared to concede the trial court erred in not assessing damages, proposing Rule 33 as the remedy. The Court found the appeal failed on liability and so had no occasion to exercise that power.

p. 15

Legal principles established

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  • The defence of fair comment is only available where the words complained of are partly allegations of fact and partly expression of opinion; a bare allegation of fact is not eligible for the defence and must be defended by justification or privilege
  • For fair comment to succeed, the facts on which the comment is based must be substantially true, even if every allegation of fact is not proved
  • The onus of proving malice to defeat fair comment lies on the plaintiff
  • A respondent who wishes the decision of the superior court to be affirmed on grounds other than or additional to those relied on below must give notice under rule 96 of the Court of Appeal Rules, failing which the contention fails

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant shall pay costs of the dismissed appeal

Authorities

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Legislation

  • Defamation Act (Cap 36, Laws of Kenya)section 15
  • Court of Appeal Rules 2010Rule 31 (now Rule 33); rules 93, 94 (now rule 96), 97
  • Constitution of KenyaNot specifically cited by provision

Cases cited (20)

  • Mong'are t/a Gekong'a & Momanyi Advocates vs. Standard Limited
    [2002] eKLR
  • Rodgers Abisai t/a Abisai & Company Advocates vs. Wachira Waruru & Another
    [2006] eKLR
  • Musikari Kombo vs. Royal Media Services Limited
    [2018] eKLR
  • DDSA Pharmaceuticals Limited vs. Times Newspaper
    [1973] All ER 417
  • Nation Media Group Limited & Another vs. Alfred N. Mutua
    [2017] eKLR
  • Jeff Otieno & 2 Others Group vs. Martin Ng'ang'a
    [2019] eKLR
  • Reynolds vs. Times Newspapers Ltd and Others
    [1999] 4 All ER 609
  • Selle & Another vs. Associated Motor Boat Company Ltd. & Others
    [1968] EA 123
  • Tse Wai Chun Paul vs. Albert Cheng
    [2001] EMLR 777
  • London Artists Ltd v. Littler
    [1969] 2 QB 375; [1969] 2 All ER 193; [1969] 2 WLR 409; [1968] EWCA Civ 3
  • Myerson v. Smith's Weekly
    (1923) 24 SR (NSW) 20
  • Kemsley vs. Foot
    [1951] 2 KB 34; [1952] AC 345
  • Clarke vs. Norton
    [1910] VLR 494
  • Turner v. Metro-Goldwyn-Mayer Pictures Ltd
    [1950] 1 All ER 449
  • Merivale v. Carson
    (1888) 20 QBD 275
  • Gardiner v. Fairfax
    (1942) 42 SR (NSW) 171
  • Cunningham-Howie v. Dimbleby
    (1951) 1 K.B. 364
  • Burton v. Board
    (1929) 1 K.B. 301
  • Truth v. Avery
    N.Z.F.R. 274
  • Broadway Approvals Ltd. v. Odhams Press Ltd.
    (1965) 1 W.L.R. 805
On appeal from
High Court of Kenya
Not stated in the judgment (plaint dated 22nd November 2011)
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (the judgment invokes Rule 33 of the Court of Appeal Rules on its powers on appeal)

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, "Onyango v Standard Group Limited & 4 others (Civil Appeal 214 of 2018) [2024] KECA 118 (KLR)", Case Analysis (2024). First appeal from the High Court (not separately numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/118/eng@2024-02-09

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