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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 226 of 2011

Eric Gor Sungu v George Odinga Oraro

Court of Appeal
31 January 2014
6,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that statements made on Parliament grounds to the press are not protected, and raised the defamation payout to Kshs.9 million.

What this practically means

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Executive summary

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The Court of Appeal (Mwera, Ouko and Kiage, JJA) dismissed the appellant's appeal against a High Court finding of defamation and allowed the respondent's cross-appeal. The appellant, then an MP chairing the Parliamentary Select Committee inquiring into the death of Dr. Robert Ouko, addressed a press conference in the car park of Parliament buildings on 6th March 2004, implying that persons - understood to include the respondent, a senior advocate - had been named by eyewitnesses in connection with Dr. Ouko's death. The central issue was whether the utterances were absolutely privileged under sections 4 and 12 of the National Assembly (Powers & Privileges) Act. The court held that privilege attaches to the business of the Assembly, not to the geographical location of the speaker: the words were spoken to the press on a Saturday when the PSC was not sitting, and were therefore not proceedings in Parliament. The court also upheld the finding that the words referred to and defamed the respondent, though without naming him. On the cross-appeal, the court enhanced general damages from shs.3 million to shs.5 million, awarded shs.4 million in aggravated damages for the appellant's recklessness, persistence and lack of remorse, and granted the permanent injunction the trial judge had overlooked. However, it set aside the trial court's order for an apology because an apology was neither pleaded nor demanded. The appeal was dismissed and the cross-appeal allowed, with costs of both borne by the appellant.

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 uttered at the press conference in the car park of Parliament buildings were absolutely privileged under sections 4 and 12 of the National Assembly (Powers & Privileges) Act
  2. 2.Whether the words were uttered within the precincts of Parliament and whether that location attracts privilege
  3. 3.Whether the words complained of referred to the respondent and were defamatory
  4. 4.Whether the learned judge erred in her treatment of the defence, evidence and exhibits
  5. 5.Whether the award of shs.3 million in general damages was excessive or inordinately low
  6. 6.Whether aggravated damages ought to have been awarded
  7. 7.Whether a permanent injunction should issue against the appellant
  8. 8.Whether the order for an apology had a basis in the pleadings

Key legal issues

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01

Scope of absolute privilege for statements made within the precincts of Parliament

Holding

Utterances made in the car park of Parliament to the press, when the PSC was not sitting, were not proceedings in Parliament and enjoyed no statutory privilege

Reasoning

Sections 4 and 12 of the Act protect words spoken before, or written in a report to, the Assembly or a Committee, and proceedings or decisions of the Assembly. The words were spoken to journalists and the public on a Saturday afternoon with the PSC not in session. Privilege attaches to the business of the House, not the location, and must be strictly construed to prevent members making wild remarks under cover of the Assembly's grounds.

p. 6
02

Whether the words referred to and defamed the respondent

Holding

Although the respondent was not named, the words imputed that he had been named by eyewitnesses as having a hand in the disappearance and death of Dr. Ouko, and were defamatory

Reasoning

The respondent alone had publicly complained via his 1st March 2004 press conference and letters through Kaplan & Stratton; the appellant's reply of 4th March quoted him; his two witnesses understood the words to refer to him. Utterances tending to impute a serious criminal act, later shown to be false, besmirch character and are defamatory.

p. 8
03

Quantum of general damages

Holding

The award of shs.3 million was enhanced to shs.5 million, considering the respondent's standing as a senior advocate, the gravity and falsity of the imputation, and the wide publication

Reasoning

The court applied the Gicheru test for interference with quantum, compared comparable awards in the Machira and Kagia cases, and found the trial judge should have referred to comparable awards. The imputation of participation in a minister's death, broadcast on radio, TV and print, justified a higher sum.

p. 9
04

Aggravated damages

Holding

Aggravated damages of shs.4 million awarded because the appellant was reckless, showed no remorse and persisted in the false statement throughout the trial

Reasoning

The trial judge found the appellant was not actuated by malice but that his recklessness could impute malice. The court held that this attribute, plus the appellant's persistence and lack of remorse, warranted aggravated damages notwithstanding the enhanced general damages.

p. 10
05

Order for an apology

Holding

The order for an apology was set aside because an apology was neither pleaded as a prayer nor demanded in correspondence

Reasoning

The plaint did not include an apology as a prayer, nor a general prayer for such other relief as the court deemed fit, and no correspondence demanded an apology. Although the circumstances warranted one, a formal order lacked a basis.

p. 10
06

Permanent injunction

Holding

The permanent injunction sought in the plaint was granted, the trial judge having apparently overlooked that prayer

Reasoning

The respondent had pleaded for a permanent injunction to prevent repetition of the defamatory statements; the trial judge did not address the prayer, probably by oversight, and the appellate court granted it despite the passage of about ten years.

p. 10

Legal principles established

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  • Parliamentary privilege attaches to the business of the House, not to the geographical location from which words are spoken
  • Privilege under the National Assembly (Powers & Privileges) Act must be strictly construed and confined to proceedings of the Assembly or its committees
  • An appellate court may interfere with a damages award only where it is so high or so small as to be an entirely erroneous estimate
  • A first appeal is by way of retrial and the court is not bound by the trial judge's findings of fact

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Cross-appeal allowed
  3. 3.High Court award of sh.3 million in general damages set aside and substituted with one of shs.5 million
  4. 4.Award of aggravated damages of sh.4 million made
  5. 5.Permanent injunction to issue against the appellant as prayed in the plaint
  6. 6.High Court order for an apology set aside
  7. 7.Costs of the appeal and cross-appeal to be borne by the appellant

The bench

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

majority
William Ouko
W OukoJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (retrial jurisdiction under the Court of Appeal's appellate powers)

Relief refused

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Reversal of the finding that the words were defamatory of the respondent

The court agreed with the trial judge that the utterances pointed to and were defamatory of the respondent

p. 8

Claim of absolute privilege for the utterances

The words were spoken to the press, not during proceedings of Parliament or the PSC

p. 5

Retention of the order for an apology

An apology was neither pleaded nor demanded; the formal order lacked a basis

p. 10

Costs

Appeal dismissed with costs to the respondent; cross-appeal allowed; costs of the appeal and cross-appeal to be borne by 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.

The privilege is not enjoyed by virtue of the geographical location of the spot from which utterances are made, but in connection with or in the business of the Assembly.
p. 6Parliamentary privilege - location vs business of the House
In our view, although the utterances were made within the precincts of Parliament, its car park, that was not a proceeding in Parliament or the PSC.
p. 5Press conference statements not proceedings in Parliament
Utterances that tend to besmirch one's character are defamatory. The words uttered by the appellant were defamatory.
p. 8Defamation - imputation of criminal conduct
The High Court award of sh.3 million in general damages, is set aside and substituted with one of shs.5 million.
p. 10Final orders - quantum
An award is made for aggravated damages to the tune of sh. 4 million.
p. 10Final orders - aggravated damages
A permanent injunction to issue against the appellant as prayed in the plaint.
p. 10Final orders - injunction
The High Court order for an apology is set aside.
p. 10Final orders - apology
Costs of the appeal and cross appeal to be borne by the appellant.
p. 10Final orders - costs

Issues in the judgment

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material

Costs order internally inconsistent between the disposition sentence and the numbered final orders

minor

The Act is cited as both Cap 6 and Cap 2 in different passages

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, "Eric Gor Sungu v George Odinga Oraro", Case Analysis (2014). Civil Appeal 226 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/889/eng@2014-01-31

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