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Court of AppealPartially AllowedCivil Appeal No. 113 of 2010

Baraza Limited & another v George Onyango Oloo [2018] KECA 36 (KLR)

Court of Appeal of Kenya
7 December 2018
2,872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cut a defamation award from Kshs 2.5 million to Kshs 1.5 million, but confirmed broadcast publication can be proved by witnesses, without a transcript.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal (Waki, Gatembu Kairu and M'Inoti, JJ.A.) on appeal and cross-appeal from the High Court at Nairobi (Ali-Aroni, J.), which had found the appellants liable for defaming the respondent, an advocate and parliamentary aspirant, in a KTN news broadcast during the December 2002 NARC nomination campaigns, and awarded him Kshs 2,500,000.00. The Court upheld liability on two grounds: first, publication was proved by the testimony of the respondent and two witnesses who watched the broadcast, the appellants having adduced no evidence to the contrary; a transcript is not the only means of proving publication. Secondly, although the alleged innuendo was not properly pleaded - the respondent failed to give particulars of any special meaning as required by the Civil Procedure Rules - liability was correctly founded on the natural and ordinary meaning of the words, which the trial judge found defamatory. On quantum, the Court held the trial judge had not demonstrably applied the checklist of factors in Johnson Evan Gicheru v Andrew Morton (drawn from Jones v. Pollard): the words were mild, broadcast once only, with no repetition or aggravating conduct. On that basis the Court interfered and reduced the award to Kshs 1,500,000.00. The cross-appeal seeking enhanced, aggravated and exemplary damages was dismissed: the comparables relied on involved graver libels, and no conduct justified punitive damages under the principles in The Standard Ltd v. Alnashir Visram. Each party was ordered to bear its own costs. The judgment binds lower courts on proof of publication without a transcript, the particulars required for pleading innuendo, and the standard for appellate interference with libel damages.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent proved publication of the defamatory broadcast in the absence of a transcript
  2. 2.Whether the alleged innuendo was properly pleaded so as to found liability
  3. 3.Whether the award of Kshs 2,500,000.00 as damages was manifestly excessive
  4. 4.Whether the respondent was entitled to enhanced damages and aggravated or exemplary damages on the cross-appeal

Key legal issues

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01

Proof of publication without a transcript

Holding

Oral evidence of witnesses who watched the broadcast was sufficient to prove publication; the trial judge's finding was not disturbed.

Reasoning

The respondent and two witnesses testified to having watched the broadcast; the appellants adduced no evidence to counter this. The trial judge, having seen and heard the witnesses, believed their evidence, a finding the Court of Appeal would not readily disturb. The transcript is not the only means of proving publication.

p. 2
02

Pleading of innuendo

Holding

The innuendo was not properly pleaded, but liability stood on the natural and ordinary meaning of the words, which the trial judge found defamatory.

Reasoning

The respondent lumped together the ordinary meaning and the alleged innuendo without giving particulars of any special meaning as required by the Civil Procedure Rules. The trial judge determined the case on the natural and ordinary meaning and ignored the ill-pleaded innuendo, which the Court could not fault.

p. 3
03

Interference with quantum of damages

Holding

The Court interfered and reduced the award to Kshs 1,500,000.00 because the trial judge did not apply the relevant checklist factors.

Reasoning

Although the judge referred to the checklist in Johnson Evan Gicheru v Andrew Morton, the judgment did not show which factors she took into account: the words were mild, broadcast once, with no repetition and no aggravating conduct by the appellants. Having omitted relevant factors, the award was open to interference.

p. 3
04

Aggravated and exemplary damages

Holding

Cross-appeal dismissed; no conduct justified punitive damages.

Reasoning

Applying the two categories in The Standard Ltd v. Alnashir Visram - oppressive, arbitrary or unconstitutional action by government servants, or a tort committed with guilty knowledge for economic advantage - the Court found no evidence of such conduct, and the appellants had conducted themselves without aggravation.

p. 3

Legal principles established

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  • A transcript is not the only means of proving publication of a broadcast in a defamation suit.
  • A party relying on innuendo in defamation must give particulars of the defamatory meaning not apparent on the face of the words.
  • An appellate court will not interfere with a trial court's award of damages unless it proceeded on wrong principles or misapprehended the evidence, producing an award so inordinately high or low as to be an entirely wrong estimate.

Court orders

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  1. 1.The appeal succeeds to the extent that the award of damages of Kshs 2,500,000.00 is set aside
  2. 2.The respondent is awarded damages of Kshs 1,500,000.00 in lieu of the award by the High Court
  3. 3.The cross-appeal is dismissed in its entirety
  4. 4.Each party to bear their own costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1029 of 2003
Jurisdiction invoked
First appellate appeal to the Court of Appeal from the High Court (statutory appeal)

Relief refused

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Appellants' challenge to liability and to publication

Court satisfied publication was proved and that liability had no merit on appeal

p. 3

Respondent's claim for enhanced damages of Kshs 5,000,000.00

Comparables relied on involved more grave libels

p. 3

Respondent's claim for aggravated and exemplary damages on cross-appeal

No conduct justifying punitive damages

p. 3

Costs

Each party shall bear their own costs.

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.

Ultimately the appeal succeeds to the extent that the award of damages of Kshs 2,500,000.00 is set aside and in lieu thereof the respondent is awarded damages of Kshs 1,500,000.00. The cross-appeal has no merit and is dismissed in its entirety. Each party shall bear their own costs. It is so ordered.
p. 4Final orders and disposition
an appellate court will not interfere with award of damages by the trial court unless it is shown that it proceeded on wrong principles or misapprehended the evidence in some material respect and thereby made an award so inordinately high or low as to represent an entirely wrong estimate.
p. 3Standard for appellate interference with damages
transcript of the broadcast is not the only means of proving publication
p. 2Proof of publication in broadcast defamation
Order 2 rule 7 (formerly Order VI rule 6A) of the Civil Procedure Rules requires a party who relies on an innuendo to give particulars of the defamatory meaning of the words complained of, if such meaning is not apparent in their natural and ordinary meaning.
p. 3Pleading particulars of innuendo

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Baraza Limited & another v George Onyango Oloo [2018] KECA 36 (KLR)", Case Analysis (2018). Civil Appeal No. 113 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/36/eng@2018-12-07

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