Mshindi & another v Ngenye (Civil Appeal 603 of 2019) [2024] KECA 1332 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed The Standard Group's defamation appeal, confirming a Kshs. 8.5 million award and ruling that choosing review forfeits the right to appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants are rightfully before this Court, having previously pursued a review of the same judgment in the superior court
- 2.Whether the respondent proved the claim of defamation against the appellants
- 3.Whether the award by the superior court is justifiable
Key legal issues
#Whether the appellants were rightfully before the Court having earlier sought review of the same judgment
The appellants lost the right of appeal against the judgment by having elected to pursue a review, which was dismissed
The Court relied on Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules, and associated itself with Gerald Kithu Muchange and Martha Wambui, holding that one must elect between review and appeal. Having exercised the right to review, the appellants lost the right of appeal against the same judgment and decree; only the outcome of the review ruling could be appealed.
Whether the respondent proved defamation and whether the defences of justification and fair comment availed
The claim of defamation was proved; the defences of justification and fair comment failed because the publication was false and was a news report, not comment
The Court found it uncontested that the words were published about the respondent. The evidence showed the alleged boycott of the respondent's court was untrue. The story was a news report based on facts whose truth the appellants could not demonstrate despite due diligence, so neither justification under Section 14 nor fair comment under Section 15 of the Defamation Act could succeed.
Whether the award of damages by the superior court was justifiable
The award of general and aggravated damages was justified and the appellate court found no basis to interfere
Applying Butt v Khan and Gicheru v Morton, the Court noted the trial judge considered the seriousness of the libel, the impact on the respondent's personal and professional reputation, the permanence of the publication, and the appellants' refusal to retract or apologise even after the falsity was communicated. The judge therefore acted on correct principles and within his discretion.
Legal principles established
#- A party who opts to apply for review of a judgment cannot, after the review application is rejected, exercise the option to appeal against the same judgment; an appeal can only lie on the outcome of the review application
- On a first appeal, the Court of Appeal must reconsider the evidence, evaluate it itself and draw its own conclusions, bearing in mind it neither saw nor heard the witnesses
- The defence of fair comment avails only where comments are made, not statements of fact; the comments must be on matters of public interest and based on true or substantially true facts
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to present an erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in some material respect
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi High Court Civil Case No. 795 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction
Relief refused
#The appellants' appeal against liability for defamation
The publications were not justified and were not fair comment; the story was a news report based on facts whose truth the appellants could not demonstrate
Interference with the quantum of damages (Kshs. 5 million general, Kshs. 2 million aggravated, Kshs. 1.5 million in lieu of apology)
The learned Judge considered all necessary factors; the publication was permanent and continued to defame as the appellants refused to apologise, retract, or pull it down
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
having exercised the right to a review, the appellants lost the right of appeal against the same judgment and decree
Accordingly, this appeal is dismissed with cost to the respondent.
the appellants cannot plead fair comment based on the facts available, nor can they plead justification since the words published were not true in substance and in fact
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to present an erroneous estimate; it must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect
we must strike a balance between the right not to be defamed and the right to freedom of expression as enshrined in Article 33(1) of the Constitution. One right should not infringe on the other
Issues in the judgment
#The court holds the appellants lost the right of appeal by pursuing review, yet proceeds to determine the merits of the appeal anyway, without explaining the basis for continuing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mshindi & another v Ngenye (Civil Appeal 603 of 2019) [2024] KECA 1332 (KLR)", Case Analysis (2024). Civil Appeal (Nairobi High Court Civil Case No. 795 of 2005 appealed). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1332/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.