James Kimeu Mulinge v Nation Media Group [2018] KECA 184 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a newspaper cannot be liable for a fictitious paid court notice it published innocently, dismissing a retired general's defamation claim.
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 appellant proved he was defamed by the 'notice to appear' published by the respondent in the Daily Nation of 28th July 2008
- 2.Whether the notice was defamatory in itself, that is, capable of lowering the estimation of the appellant in the eyes of right-thinking members of society
- 3.Whether the learned Judge erred in holding that the publication was privileged under Section 7(1) and (2) of the Defamation Act
- 4.Whether the respondent acted with malice in publishing the paid advertisement without verifying its authenticity
Key legal issues
#Whether the 'notice to appear' was defamatory of the appellant
The notice was not defamatory: the co-respondent was unnamed, and only a legally trained reader could infer an association with immorality; the objective test of the reasonable ordinary reader was not satisfied.
The court applied the objective reasonable-man test from Halsbury's Laws and S M W vs Z W M. Examining the notice, it found it incomplete because the co-respondent in the divorce petition was not named. A reader would have to be learned in law to infer adultery. Accordingly the words could not, to an ordinary reasonable reader, lower the appellant in the estimation of right-thinking members of society, and the claim failed on this footing.
Whether the respondent was entitled to the qualified privilege defence under Section 7 of the Defamation Act and whether malice was established
The publication was a paid advertisement whose originator remained unknown; the respondent published it innocently believing it bona fide, so it was not actuated by malice, and the statutory and common law qualified privilege defence applied.
The court noted that the notice was a paid advertisement and no burden was placed on the respondent to verify its genuineness. Under Section 7(1) of the Defamation Act, publication of such matters is privileged unless malice is proved; under Section 7(2), the defence fails only where a request to publish a reasonable explanation or contradiction is refused. The appellant never demanded a correction, and no malice was proved; common law qualified privilege per Adam vs Ward also applied through Section 7(4).
Whether the appellant's failure to join the purported petitioner and non-disclosure of other suits affected his claim
The appellant's failure to join the purported petitioner left the mystery unresolved, and his non-disclosure of five other suits against other media houses over the same notice lent credence to the suggestion of an abuse of court process.
The court observed that joining Stephen Mwinzi Muindi, the purported petitioner who placed and paid for the notice, would have unravelled the motive behind the fictitious publication. The identical notices spread across five media houses suggested a contrived scheme, and the appellant's failure to disclose the parallel suits when filing this suit undermined his candour and supported the respondent's abuse-of-process submission.
Legal principles established
#- A claimant in a defamation suit must principally establish the existence of a defamatory statement, that the defendant published or caused publication of it, and that the publication refers to the claimant.
- The test for whether a statement is defamatory is objective: it depends not on the intention of the publisher but on how a reasonable person reading the statement would perceive it.
- On a first appeal, the Court of Appeal proceeds by way of rehearing and must re-appraise, re-evaluate and re-analyse all the evidence on record before arriving at its own independent conclusions.
- A publisher of a paid advertisement who publishes it innocently, believing it to be bona fide, is not driven by malice and may claim the statutory qualified privilege under Section 7 of the Defamation Act; such privilege is defeated where the publisher refuses or neglects to publish a reasonable explanation or contradiction when requested.
Court orders
#- 1.Appeal 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 Malindi
- HCCC No. 69 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29 invoked as the basis of the rehearing jurisdiction)
Relief refused
#Exemplary and general damages for libel, an apology and a permanent injunction
The appellant failed to prove the notice was defamatory and failed to establish malice; the publication was an innocent paid advertisement and the statutory qualified privilege defence applied
Costs
Appeal 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.
The above being our findings, we agree with the learned Judge the claim for defamation had to fail and so does this appeal and for the reasons we enumerated hereabove we order it dismissed with costs to the respondent.
The test for whether a statement is defamatory is an objective one. It is not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive.
a claimant such as the appellant in a defamation suit ought to principally establish in no particular order: 1. The existence of a defamatory statement; 2. The defendant has published or caused the publication of the defamatory statement; 3. The publication refers to the claimant.
A qualified occasion is an occasion where the person who makes a communication has an interest, or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.
This being a first appeal, we are enjoined by law to proceed by way of re-hearing and re-appraise, re-evaluate and re-analyze all the evidence on record in a fresh and exhaustive way before arriving at our own independent conclusions
Issues in the judgment
#The judgment inconsistently dates the publication, referring to it as published in the Daily Nation of 28th July 2008 in one place but as 28th July 2007 in another.
The attribution of counsel's argument appears internally garbled: the judgment refers to 'allegations by counsel for the appellant' when the abuse-of-process allegation was made by counsel for the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kimeu Mulinge v Nation Media Group [2018] KECA 184 (KLR)", Case Analysis (2018). Civil Appeal No. 85 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/184/eng@2018-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.