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Court of AppealPartially AllowedCivil Appeal No. 88 of 2016· [2019] KECA 255 (KLR)

Nation Media Group v Gideon Mose Onchwati & 1 other

Court of Appeal of Kenya
11 October 2019
6,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal held Nation Media liable for a defamatory paid advert but cut the payout from Kshs.15.5 million to Kshs.4.5 million.

What this practically means

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Executive summary

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NMG appealed against a High Court judgment (Aburili, J., 2nd July 2015) finding it liable, jointly with its co-defendant KOC, for defamatory notices published in the Daily Nation in April 2007. The notices announced that Onchwati had ceased to be KOC's employee, that KOC wished to contact him, and asked the public to report his whereabouts to the company's Human Resource Manager or the police. Aburili J awarded Kshs.3 Million general damages, Kshs.12 Million exemplary damages and Kshs.500,000 in lieu of an apology. Before the appeal, Onchwati moved under Rule 83 to have NMG's notice of appeal deemed withdrawn for late institution. The Court dismissed that motion, holding that Rules 83 and 84 apply sequentially: once an appeal has actually been instituted by lodging the record, Rule 84 with its thirty-day window is the only avenue to strike it out. On the merits, the Court, sitting as a first appellate court, re-evaluated the evidence and affirmed liability: the notices portrayed Onchwati as a fugitive and dishonest person and were vintage defamation; NMG, though only the disseminator of a paid advertisement, was fully culpable and malice was inferable from its failure to verify, its procurement of indemnity from KOC, and its refusal to carry a rebuttal. The Court, however, interfered with quantum: it upheld the Kshs.3 Million general damages, set aside the Kshs.12 Million exemplary damages as unjustified under the limited categories for such awards, substituted Kshs.1.5 Million in aggravated damages, and struck out the Kshs.500,000 in lieu of apology as misconceived. Each party was to bear its own costs of the appeal, with Onchwati retaining the costs of the High Court suit.

Key legal issues

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01

Whether the public notices were defamatory

Holding

Yes. The notice, which carried Onchwati's photograph, ID number and a call to report his whereabouts to the police, portrayed him as a fugitive and dishonest person, lowering him in the estimation of right-thinking members of society.

Reasoning

The court re-appraised the notice as a first appellate court and found it went beyond announcing a resignation: it implied dishonesty, that Onchwati was in hiding with something to hide, and invited the public to snitch on him to the police. The natural and ordinary meaning was defamatory, and the learned Judge was entitled to find the meanings pleaded proved.

p. 5
02

Whether NMG, an innocent disseminator of a paid advertisement, is liable

Holding

NMG is fully liable. Publishing another's content does not exempt a newspaper from defamation liability, and the failure to verify and the procurement of indemnity from KOC evidenced culpability.

Reasoning

The court held that in so far as NMG published the notice it became fully culpable in defamation. Press freedom does not confer a licence to harm reputation. NMG made no serious attempt to verify the truth of the notice, knew it was contested by Onchwati, protected itself by obtaining indemnity from KOC, and refused to carry a paid rebuttal — all indicating malice.

p. 5
03

Whether malice was established

Holding

Malice was properly inferable from NMG's conduct: publishing despite being told the notice was false, obtaining indemnity, and refusing the rebuttal.

Reasoning

Following PHINEHAS NYAGA v GITOBU IMANYARA and GODWIN WACHIRA v OKOTH, malice may be inferred from the defendant's conduct in the course of proceedings; failure to inquire into the facts is itself evidence from which malice may properly be drawn, as is evidence that the defendant knew the statement was false and did not care whether it was true.

p. 5
04

Quantum of damages

Holding

General damages of Kshs.3,000,000 upheld; exemplary damages of Kshs.12,000,000 set aside and replaced with Kshs.1,500,000 aggravated damages; Kshs.500,000 in lieu of apology set aside.

Reasoning

Awards must be proportionate and comparable across similarly situated persons. The total of Kshs.15,500,000 far exceeded comparable awards to well-known public figures. Exemplary damages did not lie because NMG's conduct, though not laudable, was not so reprehensible or mercenary as to warrant punishment; the conduct relied on justified aggravated damages. Refusal to apologise is not a standalone award.

p. 7
05

Rule 83 vs Rule 84 of the Court of Appeal Rules

Holding

The two rules apply sequentially: Rule 83 governs notices of appeal not followed by institution of an appeal; Rule 84, with its thirty-day timeline, governs striking out a record of appeal actually filed out of time.

Reasoning

Where an appeal has been instituted by lodgement of the record, even if late, it would be an absurdity to deem the notice withdrawn for non-institution of that already instituted. Onchwati should have invoked Rule 84 within thirty days of service of the record; his motion, brought more than a year later, was misconceived and dismissed with no orders as to costs.

p. 5

Legal principles established

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  • A publisher who publishes an item supplied by another is fully liable in defamation if it fails to check whether the item contains libellous matter, and publishes at its own risk.
  • Where a notice of appeal has been followed by actual institution of an appeal by lodging a record of appeal, Rule 83 (deeming withdrawal) does not apply; Rule 84 within thirty days of service of the record is the correct avenue for striking out.
  • Exemplary damages are awarded only in limited categories and are punitive, not compensatory; refusal to apologise or persistence in a defence goes to aggravated damages, not exemplary damages.
  • A refusal to apologise is not a standalone head of award but a factor in general or aggravated damages.

Court orders

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  1. 1.Onchwati's notice of motion seeking to deem the notice of appeal withdrawn under Rule 83 dismissed with no orders as to costs
  2. 2.The award of Kshs.3,000,000 general damages upheld
  3. 3.Onchwati awarded a further Kshs.1,500,000 as aggravated damages
  4. 4.The award of Kshs.12,000,000 exemplary damages set aside
  5. 5.The award of Kshs.500,000 in lieu of an apology set aside
  6. 6.Each party to bear its own costs of the appeal; Onchwati to have the costs of the High Court suit
On appeal from
High Court of Kenya at Nairobi
HCCC No. 140 of 2008
Jurisdiction invoked
First appeal under the Court of Appeal Rules (Rule 29(1) of the Court of Appeal Rules invoked); Appellate Jurisdiction Act, sections 3A and 3B

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nation Media Group v Gideon Mose Onchwati & 1 other", Case Analysis (2019). Civil Appeal No. 88 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/255/eng@2019-10-11

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