Romageco Kenya Limited v Hudson Kidaha Kisigwa

The Court applied the English common law as adopted in Kenya, that in an action for libel per se the plaintiff need not plead or prove special damage where the words contain defamatory imputations which are likely to injure the plaintiff in his or her office, profession or calling. The words accusing the respondent of obtaining money by trickery and of fraud in connection with tickets imputed fraud and dishonesty in the way of her office, profession or calling as a travel agent, and so were actionable per se.

The Court relied on the Indian Supreme Court decision in Bombay Dyeing & Manufacturing Co. Ltd. v State of Bombay and other authorities, holding that whereas a claim for damages founded on an unliquidated demand would, if sued upon, be time-barred, the position is different where the defendant's claim arises directly out of the same transaction; in such a case the claim for unliquidated damages can be used as a defence by way of set-off, even though the counterclaim as such is statute-barred.

The Court held that even if the occasion on which the words were published was privileged, the plea of qualified privilege was defeated by malice. The stricture of malice in the words used, accusing the respondent of obtaining money by trickery, of fraud and of being a conwoman, meant that the defence of qualified privilege could not avail the appellant.

The Court noted that in assessing damages in an action for libel it must have regard to all the circumstances of the case, including the six factors enunciated in Gautier v Pro-Fit Ltd and applied in Phineas Nyagah v Isaac Gathaithi. Having regard to those factors, the Court concluded that the total award of Kshs. 7,000,000/- (Kshs. 6,500,000/- general damages and Kshs. 500,000/- exemplary damages) was out of proportion to the injury complained of, and substituted a global award of Kshs. 2,000,000/- with interest.

The Court applied the principle that where an admission is made by mistake, inadvertence or otherwise, the remedy is to have the matter returned to the court which made the order, not to resist judgment on admission. The appellant had admitted liability for the words complained of by admitting that they referred to the respondent; the admission therefore grounded judgment under Order XXXV rule 1.