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Court of AppealPartially AllowedCivil Appeal No. 233 of 2000

Mong’are t/a Gekong’a & Momanyi Advocates v Standard Ltd [2002] KECA 20 (KLR)

Court of Appeal of Kenya
18 October 2002
RKR. O. KwachROR. S. C. OmoloSBS. E. O. Bosire
1,214 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that reporting other people's complaints is no defence to publishing a false story — always verify facts first.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Kwach, Omolo and Bosire, JJ.A) allowed a first appeal against the dismissal by Rimita J of a defamation claim brought by two Nakuru advocates against The Standard Limited over a published story alleging they had received Shs.1 million awarded to former Elliots Bakery employees and had refused to release it. One plaintiff's claim had abated on his death under the proviso to section 2(1) of the Law Reform Act, leaving Gekong'a Mong'are as sole appellant. The respondent admitted publication. The Court found the story absolutely false: the advocates had never received any money, and the decree in the employees' favour had long been set aside, so there was nothing to hand over. The Court held that justification could not be pleaded because one cannot justify what is false, and that fair comment is only fair if premised on correct basic facts. It further held that the appellant's non-cooperation with the reporter, or the respondent's mere reporting of third-party complaints, afforded no defence; the respondent could have checked the court file or the company in liquidation. Non-cooperation was relevant only to damages. The trial Judge's dismissal was set aside, judgment entered for the appellant with costs, and the assessment of damages remitted to the trial Judge, the Court having no material on which to assess quantum itself. The appellant received 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 words published about the appellant were defamatory
  2. 2.Whether the respondent established any defence, in particular justification or fair comment on a matter of public interest
  3. 3.Whether the trial Judge erred in dismissing the appellant's defamation claim
  4. 4.What orders should follow, including whether damages should be assessed by this Court or remitted to the trial Judge

Key legal issues

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01

Truth of the basic facts as a precondition to the defences of justification and fair comment

Holding

The publication was absolutely false: the appellant had never received Shs.1 million or any sum, and the decree relied on had been set aside. Justification therefore could not be pleaded, and fair comment founded on falsehood could not be fair.

Reasoning

The Court found as a fact that no money had ever been released to the advocates and that the judgment in favour of the employees had been set aside, leaving no decree. Since one cannot justify what is false, justification failed. Even accepting a public-interest element in how advocates handle clients' money, comment premised on incorrect basic facts cannot be fair comment. The respondent's failure to verify the court file or check with the company in liquidation compounded its position.

p. 2
02

Whether non-cooperation by the plaintiff or neutral reporting of third-party complaints is a defence

Holding

Neither the appellant's failure to co-operate with the reporter nor the fact that the respondent was merely reporting the employees' complaints afforded a valid defence in law.

Reasoning

The Court held that the respondent's inability to obtain comments did not make the published facts true. The respondent could have verified the position by reading the court file or checking with Elliots Bakery Ltd in liquidation. The absence of the plaintiff's version was relevant only to the quantum of damages, not to liability.

p. 2
03

Whether the Court of Appeal could itself assess damages

Holding

The Court could not assess damages because the trial Judge had made no findings on quantum and there was no material before it; the matter had to be remitted to the trial Judge.

Reasoning

The trial Judge had dismissed the suit without stating what damages he would have awarded had he found for the plaintiff. With no material on record for assessment, the Court, though regretting the delay and additional costs, had no alternative but to remit the assessment of damages to the learned trial Judge while entering judgment for the appellant on liability.

p. 2

Legal principles established

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  • Justification as a defence to defamation is unavailable where the basic facts published are false
  • Fair comment on a matter of public interest can only be fair if the basic facts upon which the comment is premised are correct
  • A defendant's failure to obtain the plaintiff's comments, or the fact that it was merely reporting third-party complaints, does not afford a defence in law to a defamatory publication
  • Once words are found defamatory on their face, the publisher can escape liability only by establishing a defence known to law, such as justification or fair comment, under the Defamation Act

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the learned Judge dismissing the appellant's suit set aside
  3. 3.Judgment entered for the appellant as plaintiff with costs thereof
  4. 4.Case remitted to the trial Judge to assess the damages payable to the appellant
  5. 5.Appellant granted the costs of this appeal

The bench

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

RK
majority
RO
majority
SB
majority
On appeal from
High Court of Kenya at Nakuru
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act (appeal from the High Court); the judgment does not cite a specific constitutional or statutory jurisdictional provision

Relief refused

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Assessment of damages by the Court of Appeal itself

The trial Judge had not indicated what damages he would have awarded and there was no material before the Court on which to make an assessment

p. 2

Costs

Judgment for the appellant as plaintiff with costs thereof; the appellant granted the costs of this appeal

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.

The basic facts were false and one cannot justify what is false.
p. 2Justification defence unavailable on false facts
it is trite law that comment can only be fair if the basic facts upon which the comment is premised are correct. A comment which is based on lies or falsehood cannot be designated as fair.
p. 2Fair comment requires true basic facts
even if the two advocates had refused to co-operate with the respondent's reporter in Nakuru, the failure to co-operate could not make the facts reported by the respondent true.
p. 2Non-cooperation is no defence to defamation
Accordingly, we allow the appeal, set aside the order of the learned Judge dismissing the appellant's suit with costs and substitute it with an order entering judgment for the appellant as plaintiff with costs thereof. We remit the case to the trial Judge to assess the damages payable to the appellant. We grant to the appellant the costs of this appeal.
p. 2Final orders - appeal allowed, judgment entered, damages remitted for assessment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mong’are t/a Gekong’a & Momanyi Advocates v Standard Ltd [2002] KECA 20 (KLR)", Case Analysis (2002). Civil Appeal No. 233 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/20/eng@2002-10-18

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