Paul Gikonyo Muya v Nation Media Group [2015]n eKLR [2015] KECA 622 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a politician's libel suit against Nation Media Group, ruling the story was not defamatory and malice was never properly pleaded.
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 published in the Daily Nation on 5th September 2001 were defamatory of the appellant in their natural and ordinary meaning
- 2.Whether the publication bore the meanings attributed to it by the appellant in the plaint
- 3.Whether the publication caused right thinking members of society to shun or avoid the appellant and caused the loss of his parliamentary seat
- 4.Whether malice was properly pleaded and proved so as to ground exemplary or aggravated damages
Key legal issues
#Whether the impugned publication was defamatory in its natural and ordinary meaning
The court held that none of the words complained of were defamatory; being identified with KANU, a then ruling registered political party, being booed at a political meeting, or withdrawing from a party election cannot be described as defamatory, and the publication did not bear the meanings pleaded.
The court examined every word of the statement singularly and in context. It took judicial notice that KANU was a registered political party and at the material time the ruling party, so membership could not be demeaning. Expressions of approval or disapproval of a speaker at a political gathering are everyday occurrences and not defamatory, nor is withdrawing candidature for a seat. The pleaded meanings of incompetence, untrustworthiness for public office or cowardice were not established even by the appellant's own testimony.
Whether the publication caused the appellant to be shunned and caused the loss of his parliamentary seat
The court affirmed the trial judge's finding that the publication did not cause right thinking members of society to shun the appellant and did not cause the loss of his seat; his withdrawal from the sub-branch election and subsequent electoral loss predated and were independent of the publication.
The appellant continued in leadership roles in his church, club and clan after the publication, contradicting the claim of serious reputational damage. His own witness testified he had already lost the voters' favour before publication, having learned of the sub-branch elections only three days before and assessing that he was doomed to lose. On his own concession, withdrawal from the treasurer's race sealed his fate; the parliamentary election came over a year later.
Whether malice, exemplary and aggravated damages were available
Malice was misconceived because it was never pleaded in the reply with particulars as required by Order VI rule 6A(3); exemplary and aggravated damages were not pleaded nor supported by evidence, and no actual damage was proved.
The court noted that where justification is pleaded, particulars must be given under Order VI rule 6A(2), which the respondent failed to do. Equally, a plaintiff who pleads express malice against defences of fair comment and privilege must plead it in the reply with particulars. The appellant did neither, so submissions on malice were misconceived. No evidence of actual spending was led, and only general damages could have been awarded had defamation been established.
Legal principles established
#- On a first appeal, the Court of Appeal is enjoined to revisit, analyse and evaluate the evidence afresh and come to its own independent conclusion, while making allowance for the fact that the trial court saw and heard the witnesses.
- Where justification is pleaded as a defence to a libel claim, particulars must be given identifying which words are true and the matters relied upon; and where a plaintiff intends to rely on express malice to defeat defences of fair comment or qualified privilege, malice must be pleaded in the reply with particulars.
- A libellous publication is a tort actionable per se without proof of actual damage; proof of actual damage affects only quantum, and aggravated or exemplary damages must be pleaded and proved.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1404 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate jurisdiction conferred on the Court (the judgment proceeds as a first appeal on facts and law; no specific constitutional provision is invoked)
Relief refused
#General damages for libel including exemplary and aggravated damages
The publication was found not to be defamatory; in any event aggravated and exemplary damages were not pleaded nor supported by evidence, and malice was never pleaded in the reply with particulars as required
Costs
The appeal was dismissed with costs to the respondent.
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.
We have anxiously considered every word of the statement singularly and in the context of the entire statement and are unable to detect any word of the statement which may be described as defamatory.
We take judicial notice of the fact that at the time and even now KANU was and is a registered political party and being a member thereof cannot and could not be demeaning.
A libellous publication is a tort actionable per se without pr oof of actual damage. Proof of actual damage would only have affected the quantum awardable.
The upshot is that we find no merit in this appeal and order that it be and is hereby dismissed with costs. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Gikonyo Muya v Nation Media Group [2015]n eKLR [2015] KECA 622 (KLR)", Case Analysis (2015). Civil Appeal No. 224 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/622/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.