Agnes Zani v Standard Group Limited [2019] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal ordered the Standard Group to pay Agnes Zani KES 6 million because it could not prove a defamatory story was true.
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 article published by the respondent was defamatory of the appellant
- 2.Whether the respondent proved the truth of the publication or discharged its burden of proof, having called no evidence
- 3.Whether the trial judge erred in finding no malice and dismissing the suit
- 4.Whether the assessed damages of Shs.1,500,000 were reasonable and whether the appellate court should interfere
Key legal issues
#Whether the published words were defamatory of the appellant
The words were plainly defamatory because they associated the appellant with the 'men in black' who disrupted the ODM elections and engaged in criminal activity, lowering her in the estimation of right-thinking members of society.
Applying the classic test from SMW v ZWM and Halsbury's Laws, the court examined the meaning conveyed to the ordinary reasonable reader. The article named the appellant twice, published her photograph, and gave a detailed timetable associating her with a shadowy group whose purpose was to disrupt elections and commit criminal acts. Her witnesses testified the article changed their view of her. All elements of defamation - defamatory statement, publication, and reference to the plaintiff - were established on the evidence.
Whether the trial judge erred in dismissing the suit when the respondent led no evidence
Yes. The respondent pleaded reliance on a credible source but named no source and called no evidence; the judge erred in finding the publication substantially true and non-defamatory without evidence from the respondent.
The court invoked the settled principles in Selle v Associated Motor Boat Company allowing a first appellate court to re-evaluate evidence. The respondent did not call any evidence to rebut the appellant's case. Authorities cited by the appellant established that the burden of proving the truthfulness of a publication rests on the defendant and can only be discharged by credible evidence. In the absence of such evidence it was wrong to find the words true or non-defamatory, and the dismissal was set aside.
Whether the award of Shs.1,500,000 in general and exemplary damages was reasonable
No. The award was too low in the circumstances, given the prominence of the article, the appellant's standing, the respondent's failure to retract or apologise; the court substituted Shs.5,000,000 general damages and Shs.1,000,000 aggravated damages.
Applying Jones v Pollard factors and the guidelines in Wangethi Mwangi v Machira, the court found the article was prominent, covering two pages with the appellant's photograph and name, contrary to the trial judge's finding. The demand for an apology was ignored, which supports aggravated damages under John v MG Limited. The court took the recent awards in Miguna Miguna v Standard Group by the same court as representative and substituted those amounts.
Legal principles established
#- On a first appeal, the Court of Appeal must re-appraise the evidence and reach its own conclusions, subject to the disadvantage of not having seen or heard the witnesses.
- Where a defendant in a defamation suit relies on justification (truth), the burden lies on the defendant to tender evidence to prove the truth of the publication; an unproven anonymous 'credible source' does not discharge that burden.
- A defendant who publishes allegations against a person without seeking that person's response or position risks a finding of malice and cannot defeat the defamation claim without evidence.
Court orders
#- 1.Setting aside that part of the High Court judgment dismissing the suit
- 2.Substitution of an order allowing the case against the respondent
- 3.Award to the appellant of Shs.5,000,000 in general damages
- 4.Award to the appellant of Shs.1,000,000 in aggravated damages
- 5.Costs of the appeal and of the High Court awarded to the appellant
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. 405 of 2014
- Jurisdiction invoked
- First appeal from the High Court in its original jurisdiction under the Court of Appeal's appellate jurisdiction (rule 29 of the rules of the Court invoked for re-appraisal of evidence)
Relief refused
#Exemplary damages as a distinct head beyond the substituted award
The court awarded general and aggravated damages modelled on the Miguna Miguna awards rather than awarding a separate exemplary damages sum
Costs
The appellant will have costs here and in the High Court.
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.
In sum therefore we set aside the finding of the judge dismissing the suit and substitute thereof an order allowing the case against the respondent.
We award the appellant Shs.5,000,000 in respect of general damages and award Shs.1,000,000 for aggravated damages. The appellant will have costs here and in the High Court.
The respondent had a duty if indeed it believed that the words it published were true to lead evidence that the appellant was associated in any way with the men in black who disrupted the said elections.
A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.
Aggravated damages will be ordered against a defendant who acts out of improper motive e.g. where it is attracted by malice; insistence on a flurry defence of justification or failure to apologize.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Zani v Standard Group Limited [2019] KECA 66 (KLR)", Case Analysis (2019). Civil Appeal No. 174 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/66/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.