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Court of AppealDismissedCivil Appeal No. 56 of 2006· [2015] KECA 602 (KLR)

S M W v Z W M

Court of Appeal of Kenya
3 July 2015
WKW. KaranjaPhilomena Mbete MwiluP. M. MwiluFAF. Azangalala
3,118 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a defamation appeal, confirming that hurt feelings alone don't make a statement defamatory.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of the High Court (P.N. Waki, J) dismissing the appellant's defamation suit founded on a letter dated 15th March 2001 written by the respondent to the appellant and copied to the OCS Gatundu Police Station, the D.O. Gatundu South, the appellant's advocates and the Chief. The letter warned the appellant, who was romantically involved with the respondent's mother, against interfering with the estate of the respondent's late father and against giving gifts to the mother. At trial the judge found the words true in substance, that they bore none of the pleaded meanings, and dismissed the suit with costs. The appellant challenged the findings on publication, qualified privilege and justification. The Court of Appeal, in a unanimous judgment, framed two issues: whether the letter was defamatory and whether any defamatory defence was available. Applying the objective reasonable-man test from Halsbury's Laws and Gatley, the court held that the pleaded meanings of sexual pervert, pimp, fraudster and the like were stretched innuendoes not reasonably conveyed by the letter, which had to be read in the context of an ongoing family dispute. The trial witnesses, who met the reasonable-man standard, did not regard the appellant as defamed, and no ridicule, hatred or shunning was shown. The court declined to assess damages as academic and dismissed the appeal with costs to the respondent, affirming the judgment of the High Court.

Key legal issues

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01

Whether the letter of 15 March 2001 bore the defamatory meanings ascribed to it

Holding

The words were not defamatory; the meanings pleaded (sexual pervert, pimp, fraudster, grabber, hypocrite, covetous, irresponsible) were stretched innuendoes not reasonably conveyed by the letter, which had to be read in the context of an ongoing family dispute.

Reasoning

The court applied the objective reasonable-man test, relying on Halsbury's Laws and Gatley. The pleaded meanings were innuendoes not contained in the letter; a pimp's dictionary meaning had no connotation in the letter. The letter was a continuation of an ongoing dispute over the appellant's relationship with the respondent's mother. Trial witnesses, who passed the reasonable-man test, did not consider the appellant defamed, and no evidence of ridicule, hatred or shunning existed.

p. 5
02

Standard of interference with findings of the trial judge on a first appeal

Holding

An appellate court will not interfere with the trial judge's exercise of discretion unless he misdirected himself or was clearly wrong, resulting in miscarriage of justice.

Reasoning

The court reaffirmed the settled principles in Selle v Associated Motor Boat Company and Mbogo v Shah: a first appeal is by way of retrial, the court re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses, but will not disturb findings absent misdirection or clear error causing injustice.

p. 4

Legal principles established

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  • A plaintiff in defamation must prove the words were spoken or written, referred to him, were false, defamatory, and that he suffered injury to reputation.
  • The test of defamatory meaning is objective, based on the understanding of the ordinary reasonable man, and words must be read in their context, not in isolation.
  • Not every statement that lowers a plaintiff's reputation is defamatory; a subjective apprehension of defamation by the plaintiff himself is not defamation in law.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 577 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act and rules governing appeals from the High Court

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, "S M W v Z W M", Case Analysis (2015). Civil Appeal No. 56 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/602/eng@2015-07-03

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