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Court of AppealPartially AllowedCivil Appeal (Nairobi)

Nation Newspapers Limited v Lydia Chesire [1984] KECA 33 (KLR)

Court of Appeal of Kenya
29 May 1984
5,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a newspaper was liable for misidentifying a woman in a photo, but slashed her damages from Kshs 15,000 to 1,000.

What this practically means

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Executive summary

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The Court of Appeal dismissed the Nation Newspapers' appeal against the finding of liability but allowed it against quantum. The respondent had sued over a Sunday Nation photograph of a lady presenting a trophy at a Kericho golf tournament, captioned as 'Mrs Chesire', wife of Mr Reuben Chesire, when the respondent was his lawful wife. The trial judge (Chesoni J) found libel by innuendo and awarded Kshs 15,000 with an injunction refused. The appellate bench (Kneller, Hancox and Nyarangi Ag JJAA, each giving a judgment) held that the test for liability in libel is objective: it matters not that the publisher did not know of the plaintiff's existence, nor that Kenya recognises potentially polygamous marriages - that goes to quantum. For libel by innuendo, it suffices that persons knowing the special facts might reasonably understand the words defamatorily; it need not be shown that any reader actually formed the defamatory impression. The court declined the invitation to depart from Cassidy v Daily Mirror and Hough, noting the publisher's remedy lies in the statutory defences in sections 12 and 13 of the Defamation Act, which the Nation had not used. However, Kshs 15,000 was excessive: the defamation was slight given the parties' long separation, the respondent's use of her maiden name and pending divorce petition. The award was reduced to nominal damages of Kshs 1,000, with the balance of Kshs 14,000 repaid to the Nation, and there was no order as to the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the photograph and caption were capable in law of bearing the defamatory meanings ascribed to them, given that Kenya recognises polygamous as well as monogamous marriages
  2. 2.Whether Cassidy v Daily Mirror and Hough v London Express Newspaper are applicable law in Kenya under section 3(1) of the Judicature Act
  3. 3.Whether the trial judge misdirected himself on liability for libel by innuendo, including whether evidence that a reader knew the special facts but was not himself defamatorily affected defeats the claim
  4. 4.Whether the award of Kshs 15,000 damages was excessive

Key legal issues

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01

Liability for unintentional libel by false identification

Holding

The Nation was liable even though it did not know Mrs Lydia Chesire existed; the objective test from Hulton v Jones and Cassidy v Daily Mirror applies in Kenya.

Reasoning

The court considered whether to depart from Cassidy, which its predecessor approved in East African Standard v Gitau, but declined for two reasons: the law of libel has 'passed beyond redemption by the courts', and Parliament had instead provided the publisher with statutory defences in sections 12 and 13 of the Defamation Act. The proper course for a publisher is to plead and prove those defences, which the Nation had not done.

p. 3
02

Libel by innuendo and proof of special circumstances

Holding

Evidence that a witness knew the special facts (that Lydia was the lawful wife) suffices, even if the witness did not himself think less of the plaintiff.

Reasoning

Following Hough and applying Clerk & Lindsell and Gatley, the plaintiff must prove that special or extrinsic facts were known to recipients of the publication. The evidence need not show that those recipients actually understood the words defamatorily, only that a reasonable person with that knowledge might. Mr Kuruna's knowledge of the marriage was the requisite special circumstance.

p. 5
03

Applicability of English monogamy-based authorities in polygamous Kenya

Holding

Cassidy and Hough were correctly applied; the polygamous character of many Kenyan marriages goes to quantum, not liability.

Reasoning

Counsel for the Nation argued the English decisions were inapplicable in a country permitting several forms of marriage and that under the proviso to section 3(1) of the Judicature Act received law applies only so far as local circumstances permit, citing Dodhia v National and Grindlays Bank. The court accepted the trial judge's view that this was irrelevant to liability but relevant to quantum, which informed the reduction of damages.

p. 2
04

Excessiveness of the damages award

Holding

Kshs 15,000 was excessive; nominal damages of Kshs 1,000 were appropriate because the defamation was slight.

Reasoning

The respondent and her husband had been separated since 1970, she used her maiden name outside school, she had petitioned for divorce, and the only supporting witness's regard for her was unaffected. The trial judge over-weighted the appellant's refusal to apologise, which did not worsen a minor defamation. Following Butt v Khan, Channan Singh and H West & Son, the award was substantially reduced.

p. 7

Legal principles established

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  • The test for liability in libel is objective: what the reasonable reader would understand, not what the publisher intended or knew.
  • For libel by innuendo it suffices that persons knowing the special facts might reasonably understand the words defamatorily; it need not be proved that any such person actually did so.
  • An appellate court may interfere with a damages award where it is so high or so low as to have been wrongly assessed.

Court orders

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  1. 1.Appeal dismissed on liability; the finding that the Nation was liable upheld
  2. 2.Award of Kshs 15,000 damages set aside and substituted with an award of Kshs 1,000 with costs and interest on both sums
  3. 3.Respondent to repay the balance of the decretal amount (Kshs 14,000) to the appellant
  4. 4.No order as to costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Wrote the leading judgment. Considered whether the objective or subjective test governed liability for unintentional libel; declined to depart from Cassidy v Daily Mirror and Hough as followed in East African Standard v Gitau. Agreed liability stood but the award of Kshs 15,000 was excessive and should be reduced to Kshs 1,000, with the balance repaid and no order as to costs of the appeal.

I would dismiss this appeal with no order as to costs, uphold the finding of Mr Justice Chesoni that the Nation was liable, but set aside the award of Kshs 15,000 damages and substitute for it one of Kshs 1,000 only with costs and interest on both sums.p. 4
concurring

Wrote the judgment

Concurring judgment summarising the orthodox law of libel by innuendo. Held the judge did not misdirect himself on liability: the picture and caption were capable of bearing the defamatory meanings in paragraphs 4 and 5(a) of the plaint, and evidence of special circumstances known to readers sufficed without proof that any reader actually understood them defamatorily. Agreed damages should be reduced to a nominal Kshs 1,000.

Accordingly, I agree with the learned judge that the words complained of were capable in law of bearing a meaning defamatory of the respondent.p. 6
concurring

Wrote the judgment

Concurring judgment on liability and quantum. Held the test for liability in libel is objective; reasonable people knowing the special circumstances could understand the photograph and caption defamatorily. On quantum, the defamation was light, the trial judge over-emphasised the refusal to apologise, and nominal damages of Kshs 1,000 were appropriate, with the balance of Kshs 14,000 repaid to the appellant.

In my judgment, a nominal award of Kshs 1,000 as damages would meet the ends of justice. The award of Kshs 15,000 should be set aside and substituted with an award of Kshs 1,000.p. 8
On appeal from
High Court of Kenya, Nairobi
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court (Judicature Act, cap 8 framework)

Relief refused

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Setting aside the finding of liability in its entirety

The objective test applies; the words and picture were capable of a defamatory meaning by innuendo and the trial judge did not misdirect himself

p. 4

Costs of the appeal to the respondent

Having won a reduced rather than full award, the respondent was treated as having lost her best claim, like Pyrrhus

p. 4

Costs

No order as to costs of the appeal; costs below (with costs and interest on the substituted award) preserved as ordered by the trial judge; respondent to repay the balance of the decretal amount to the appellant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I would dismiss this appeal with no order as to costs, uphold the finding of Mr Justice Chesoni that the Nation was liable, but set aside the award of Kshs 15,000 damages and substitute for it one of Kshs 1,000 only with costs and interest on both sums. Mrs Lydia Chesire must repay the balance of the decretal amount to the Nation.
p. 4Final orders of the court
Hancox JA and Nyarangi Ag JA, agree, so those are the orders of the court.
p. 4Unanimity and disposition
The test for liability in libel is objective and in this action it did not matter that the reproduction of the photograph and the description of the lady as Mrs Chesire were not ordinarily defamatory.
p. 6Objective test for libel
This court may alter an award if it is so high or so low as to have been wrongly assessed: Butt v Khan, Civil Appeal 40 of 1977 as per Law JA.
p. 8Appellate interference with quantum
Accordingly, I agree with the learned judge that the words complained of were capable in law of bearing a meaning defamatory of the respondent.
p. 6Capable of defamatory meaning by innuendo

Issues in the judgment

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minor

The judgment contains inconsistent citations for the same authorities across the separate judgments, e.g. Hough is cited as [1940] 2 KB 507 in one place and [1940] 1 AER 31 / [1940] 3 All ER 31 in others; Cassidy is cited as [1929] 2 KB 331 and [1929] AE Rep 117; Hulton v Jones is cited as [1970] AC 20 although the speech quoted is from 1910.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nation Newspapers Limited v Lydia Chesire [1984] KECA 33 (KLR)", Case Analysis (1984). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/33/eng@1984-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.