Eric Gor Sungu v George Odinga Oraro
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the words were uttered within the precincts of Parliament and whether that location attracts privilege
- 3.Whether the words complained of referred to the respondent and were defamatory
- 4.Whether the learned judge erred in her treatment of the defence, evidence and exhibits
- 5.Whether the award of shs.3 million in general damages was excessive or inordinately low
- 6.Whether aggravated damages ought to have been awarded
- 7.Whether a permanent injunction should issue against the appellant
- 8.Whether the order for an apology had a basis in the pleadings
Key legal issues
#Scope of absolute privilege for statements made within the precincts of Parliament
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
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.
Whether the words referred to and defamed the respondent
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
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.
Quantum of general damages
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
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.
Aggravated damages
Aggravated damages of shs.4 million awarded because the appellant was reckless, showed no remorse and persisted in the false statement throughout the trial
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.
Order for an apology
The order for an apology was set aside because an apology was neither pleaded as a prayer nor demanded in correspondence
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.
Permanent injunction
The permanent injunction sought in the plaint was granted, the trial judge having apparently overlooked that prayer
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs to the respondent
- 2.Cross-appeal allowed
- 3.High Court award of sh.3 million in general damages set aside and substituted with one of shs.5 million
- 4.Award of aggravated damages of sh.4 million made
- 5.Permanent injunction to issue against the appellant as prayed in the plaint
- 6.High Court order for an apology set aside
- 7.Costs of the appeal and cross-appeal to be borne by the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Claim of absolute privilege for the utterances
The words were spoken to the press, not during proceedings of Parliament or the PSC
Retention of the order for an apology
An apology was neither pleaded nor demanded; the formal order lacked a basis
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
#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.
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.
Utterances that tend to besmirch one's character are defamatory. The words uttered by the appellant were defamatory.
The High Court award of sh.3 million in general damages, is set aside and substituted with one of shs.5 million.
An award is made for aggravated damages to the tune of sh. 4 million.
A permanent injunction to issue against the appellant as prayed in the plaint.
The High Court order for an apology is set aside.
Costs of the appeal and cross appeal to be borne by the appellant.
Issues in the judgment
#Costs order internally inconsistent between the disposition sentence and the numbered final orders
The Act is cited as both Cap 6 and Cap 2 in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.