Nation Media Group Limited & 2 others v Mubea (Civil Appeal 353 of 2019) [2024] KECA 1508 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs. 10 million defamation award against Nation Media Group because its broadcasts strayed beyond actual court documents.
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 broadcasts by the appellants were defamatory of the respondent
- 2.Whether the defence of fair comment and/or privilege under section 6 of the Defamation Act was available to the appellants
- 3.Whether the quantum of damages awarded to the respondent was excessive, unjustified and not based on comparative decisions
Key legal issues
#Whether the broadcasts were defamatory
Yes - by the 3rd appellant's own admission the broadcasts were aired, and the false statements brought the respondent into hatred, contempt and ridicule.
The 3rd appellant admitted participating in the broadcasts and conceded key statements were untrue. The appellants never sought clarification from the respondent or the law firm, continued broadcasting after a demand letter, and published patently false statements about the integrity of a senior officer of the anti-corruption body, which was significantly injurious to his reputation.
Availability of the defences of fair comment and qualified/absolute privilege
Not available - the broadcasts were not a fair and accurate report of court proceedings because they included damaging material not found in the Petition.
Words such as 'nine lives', 'dark forces' and 'axis of evil' were not drawn from Petition No. 330 of 2016. Permitting guests to comment on untried allegations in live broadcasts meant accuracy could not be guaranteed. The court aligned with Mukunya and Abisai on misdescription of conduct and departure from proceedings.
Whether the award of damages was excessive
No - the trial judge considered comparative authorities and aggravating factors; there was an error in lumping exemplary and aggravated damages but the Kshs. 3,000,000 was justified.
Although the trial judge erred in principle by treating aggravated and exemplary damages as indistinguishable, the aggravating factors - failure to apologise after a demand notice and continued broadcasting - justified the award. The court applied the standard for interference with damages awards and declined to disturb the sums.
Legal principles established
#- The ingredients of defamation are that the statement must be defamatory, must refer to the plaintiff, must be published by the defendant, and must be false.
- The defence of absolute privilege for fair and accurate reports of judicial proceedings under section 6 of the Defamation Act is lost where the broadcast departs from the pleadings and includes matter not before the court.
- An appellate court interferes with a damages award only for an error of principle, misapprehension of evidence or facts, or an award manifestly out of proportion - not merely because it would have arrived at a different figure.
Court orders
#- 1.Appeal dismissed with costs
- 2.Judgment of the High Court (Kshs. 7,000,000 general damages and Kshs. 3,000,000 aggravated damages) upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment. Found the broadcasts defamatory, held the defences of fair comment and privilege unavailable because the broadcasts deviated from the court pleadings, and declined to interfere with the damages award; dismissed the appeal with costs.
In the premises, this appeal is without merit and I would dismiss it with costs.p. 11
Wrote the judgment
Concurred fully with Kiage, JA, adding nothing.
I have had the advantage of reading in draft the judgment of my brother Kiage, JA, which I entirely agree with and have nothing useful to add.p. 11
Wrote the judgment
Concurred fully with the judgment of Kiage, JA.
I have had the advantage of reading in draft the judgment of Hon. P. O. Kiage JA. I am in full agreement with his reasoning and conclusions and therefore, have nothing useful to add.p. 11
- On appeal from
- High Court of Kenya at Nairobi
- null
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 31(1)(a)) over an appeal from the High Court in a defamation suit
Relief refused
#Setting aside the High Court judgment
The appeal lacked merit; the broadcasts were defamatory and the defences failed
Reassessment/reduction of damages
No error of principle or manifest excess justifying appellate interference
Costs
Appeal 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.
In the premises, this appeal is without merit and I would dismiss it with costs. As Ali-Aroni and Achode, JJA are of the same view, it is so ordered.
the ingredients of defamation are that the statement must be defamatory; the statement must refer to the plaintifi; the statement must be published by the defendant and the statement must be false
It is trite that an appellate court will only interfere with an award of damages by a trial court where, there has been an error in principle; a misapprehension of the evidence or facts; or the award is manifestly out of proportion by being too much or too little
a claimant in a defamation suit has to establish the following elements; i. The statement must be defamatory; ii. The statement must refer to the plaintifi; iii. The statement must be published by the defendant and, iv. The statement must be false.
this being a first appeal, we proceed by way of a re-hearing with express obligation to re-appraise and re-evaluate the entire evidence with a view to making our own independent inferences and conclusions
Issues in the judgment
#The same Kiunjuri and Gicheru authorities appear under slightly different case-name and citation renderings in the judgment (e.g. 'Kiunjuri v Wangethi Mwangi & 2 Others [2016] eKLR' and 'Mwangi Kiunjuri v Wangethi Mwangi... [2016] KECA 648 (KLR)').
The judgment refers to the 3rd appellant in cross-examination once as 'the 3rd respondent' - an apparent internal slip.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nation Media Group Limited & 2 others v Mubea (Civil Appeal 353 of 2019) [2024] KECA 1508 (KLR)", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1508/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.