Onyango v Standard Group Limited & 4 others (Civil Appeal 214 of 2018) [2024] KECA 118 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defamatory imputations in the documentaries were true or protected by fair comment
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
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.
Pleading of defamatory words forming part of a longer publication
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
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.
Duty of the trial court to assess damages even where liability fails
The Court noted the argument but declined to disturb the outcome; it would have assessed damages under Rule 33 only had liability been established
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.The appellant shall pay costs of the dismissed appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.