Rutto v Langat & another (Civil Appeal 51 & 52 of 2020 (Consolidated)) [2025] KECA 1276 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs 5 million defamation award against a former Governor and The Standard, but split liability 70:30 between them.
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 1st respondent proved her case for defamation against the appellant to the required standards
- 2.Whether the appellant was liable for publication of the article dated 31st March 2016, i.e. whether his announcement at the press conference amounted to publication
- 3.Whether the appellant was protected by the defence of fair comment on a matter of public interest
- 4.Whether the 2nd respondent's defences of fair comment and qualified privilege were available, or whether malice defeated them
- 5.Whether liability should have been entered jointly and severally against the two defendants
- 6.Whether the award of Kshs. 5,000,000 general damages was founded on wrong principles or was excessive
- 7.Whether section 7A of the Defamation Act (right of reply) should have reduced the damages
- 8.Who should bear the costs of the appeal
Key legal issues
#Proof of the tort of defamation by the 1st respondent
The elements of defamation were proved against the appellant: the allegations referred to the 1st respondent, would be libellous if untrue, and the appellant's failure to testify left the untruthfulness unchallenged; libel is actionable per se so no special damage need be proved.
The Court restated the ingredients from Nation Media Group v Kamotho and Alnashir Visram v Standard Limited. The appellant called no evidence, so the 1st respondent's evidence that the allegations were untrue stood unchallenged. His announcement was intended for the public and amounted to publication, and no witness to diminished reputation was needed since the statement was actionable per se.
Defence of fair comment on a matter of public interest
The defence was unavailable to the appellant because he led no evidence supporting the truth of the underlying facts on which the comment was said to rest.
Fair comment requires a matter of public interest, expression of opinion rather than assertion of fact, and comment founded on true facts existing when the comment was made. Relying on Winfield & Jolowicz and section 15 of the Defamation Act, the Court held that while every fact need not be proved, here no evidence at all supported the allegations, so the defence failed.
Qualified privilege of the 2nd respondent and express malice
Although the occasion was privileged because both parties were public officers and the public had a corresponding interest, the privilege was displaced by malice inferred from the 2nd respondent's failure to seek the 1st respondent's views before publishing.
Qualified privilege protects statements made under a legal, moral or social duty to a person with a corresponding interest, but is rebutted by express malice. Malice may be inferred from failure to inquire into the facts. The purpose of contacting the person defamed is to present both sides so the public can form an informed view; failure to do so was a manifestation of malice.
Joint and several liability where no such relief was pleaded
The trial judge erred in entering judgment jointly and severally because the causes of action arose from different publications and distinct roles; liability was apportioned 70:30 as between the appellant and the 2nd respondent.
While a court may of its own motion enter joint and several judgment where appropriate, here the appellant's liability arose from his own press conference publication and the 2nd respondent's from its separate publication without verification. Given their distinct culpability, apportionment rather than the single-judgment rule was appropriate.
Quantum of damages and the appellate standard of interference
The award of Kshs. 5,000,000 was not disturbed; the Court restated that interference is warranted only for a wrong principle or an entirely erroneous estimate, neither of which was established.
Citing Gitobu Imanyara v Attorney General, Jane Chelagat Bor v Andrew Otieno Onduu and Mariga v Musila, the Court held that a balance of opinion is insufficient; the scale must go down heavily against the figure attacked. The trial judge considered the appropriate factors, including the unavailability of retraction, and the award stood.
Section 7A of the Defamation Act (right of reply) as a ground for reducing damages
The section could not be invoked on appeal because the 2nd respondent never pleaded it; unpleaded matters that would take a party by surprise cannot found a defence.
Applying Order 2 rule 4(1) of the Civil Procedure Rules, the Court held that reliance on the statutory right of reply to diminish damages is a matter that must be specifically pleaded. The Court also clarified the mechanics of section 7A: the 14-day period is for notifying the publisher of intent; the reply itself is exercisable within six months.
Legal principles established
#- An announcement by an author intended to be made to the public amounts to publication, and the author is liable for repetition he has reason to expect.
- The defence of fair comment requires proof that the comment is an expression of opinion based on true facts in existence; it fails where no evidence supports the underlying allegations.
- A newspaper's qualified privilege for reporting matters of public interest is defeated by express malice, and failure to obtain the defamed person's side of the story is a manifestation of malice.
- Where joint tortfeasors' causes of action arise from different publications and distinct degrees of culpability, liability may be apportioned rather than entered jointly and severally.
- An appellate court will not interfere with an award of damages unless the trial judge acted on a wrong principle or the award is an entirely erroneous estimate.
- A claim to reduced damages under section 7A of the Defamation Act for failure to exercise the right of reply must be specifically pleaded.
Court orders
#- 1.Set aside the judgment on liability against the appellant and the 2nd respondent jointly and severally and substitute therefor a judgment against them severally in the ratio of 70:30 respectively
- 2.Save for the foregoing, the appeal is dismissed
- 3.Costs of the appeal awarded to the 1st respondent, to be paid by the appellant and the 2nd respondent according to their respective liabilities
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Bomet
- Civil Case No. 3 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal; specific constitutional provision not cited in the judgment)
- Consolidated with
- Civil Appeal No. 52 of 2020
Relief refused
#The appellant's appeal against liability for defamation and against the defences of fair comment/justification
No evidence was led by the appellant to support the prima facie defamatory allegations; the ingredients of defamation and publication were proved
The 2nd respondent's appeal on liability and on the alleged absence of malice
Failure to seek the 1st respondent's view before publication was a manifestation of malice defeating qualified privilege
Reduction of the damages award from Kshs. 5,000,000 to Kshs. 1,000,000
The appellate threshold for interfering with quantum was not met
The 2nd respondent's plea that damages be reduced under section 7A of the Defamation Act for failure to exercise the right of reply
Such a matter must be specifically pleaded; failure to plead it would take a party by surprise
Costs
We award the costs of the appeal to the 1st respondent to be paid by the appellant and the 2nd respondent according to their respective liabilities.
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.
We set aside the judgement on liability against the appellant and the 2nd respondent jointly and severally and substitute therefor a judgement against them severally in the ratio of 70:30 respectively.
Save for the foregoing the appeal is dismissed.
We award the costs of the appeal to the 1st respondent to be paid by the appellant and the 2nd respondent according to their respective liabilities.
In this case, no evidence was led by the appellant to support the prima facie defamatory allegations made by him. In the premises, the defence was not available to him.
Failure by the 2nd respondent to get the 1st respondent's view was, in our view, a manifestation of malice.
the announcement itself amounted to publication because it was intended that the announcement be made to the public.
It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.
is a matter that would take a party by surprise if not pleaded and ought to have been pleaded expressly.
Issues in the judgment
#The judgment is internally contradictory on the burden of proof on qualified privilege: it first states that the plaintiff must prove express malice once privilege is made out, but later holds the 2nd respondent liable on a malice inference without any express finding that the 1st respondent proved express malice.
The judgment cites Reynolds v Times Newspapers with inconsistent citations in different passages ([2001] 2 AC 127 [HL] and [2001] 2 AC 27 [HL]).
The judgment records that the Employment and Labour Relations Court found for the 1st respondent in terms that appear inconsistent within the same sentence.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pukose v Okembo (Civil Appeal E075 of 2021) [2026] KECA 1199 (KLR)[2026] KECA 1199 (KLR)26 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "Rutto v Langat & another (Civil Appeal 51 & 52 of 2020 (Consolidated)) [2025] KECA 1276 (KLR)", Case Analysis (2025). Civil Appeal No. 51 of 2020 (lead file, consolidated with Civil Appeal No. 52 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1276/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.