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Court of AppealDismissedCivil Appeal (Nairobi)· [2024] KECA 1508 (KLR)

Nation Media Group Limited & 2 others v Michael Kamau Mubea

Court of Appeal of Kenya
25 October 2024
5,922 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 upheld a Kshs. 10 million defamation award against Nation Media Group because its broadcasts strayed beyond actual court documents.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kiage, Ali-Aroni and Achode, JJA) dismissed an appeal by Nation Media Group Limited, Emmanuel Juma and news anchor Ken Mijungu against a High Court judgment (Sergon, J) finding them liable for defaming Michael Mubea, former Deputy Chief Executive Officer of the EACC, through NTV broadcasts between July and September 2016. The broadcasts alleged that Mubea's former law firm received Kshs. 50.4 million linked to the NYS scandal. The appellants argued no evidence proved the broadcasts, that they were fair and accurate reports of pleadings in Okiya Omtatah's Petition No. 330 of 2016 and thus privileged under sections 6 and 8 of the Defamation Act, and that the damages of Kshs. 7 million general and Kshs. 3 million aggravated were excessive. The Court, as a first appellate court, reappraised the evidence and held that the 3rd appellant's own testimony proved publication; that words such as 'nine lives', 'dark forces' and 'axis of evil' were not in the Petition, so the broadcasts were not fair and accurate reports and privilege was unavailable; and that although the trial judge erred in treating aggravated and exemplary damages as indistinguishable, the aggravating factors justified the award, which the Court declined to disturb. The appeal was dismissed with costs, affirming the decision below. Ali-Aroni and Achode, JJA each delivered short concurring opinions agreeing fully with Kiage, JA.

Key legal issues

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01

Whether the broadcasts were defamatory

Holding

Yes - by the 3rd appellant's own admission the broadcasts were aired, and the false statements brought the respondent into hatred, contempt and ridicule.

Reasoning

The 3rd appellant admitted participating in the broadcasts and conceded key statements were untrue. The appellants never sought clarification from the respondent or the law firm, continued broadcasting after a demand letter, and published patently false statements about the integrity of a senior officer of the anti-corruption body, which was significantly injurious to his reputation.

p. 9
02

Availability of the defences of fair comment and qualified/absolute privilege

Holding

Not available - the broadcasts were not a fair and accurate report of court proceedings because they included damaging material not found in the Petition.

Reasoning

Words such as 'nine lives', 'dark forces' and 'axis of evil' were not drawn from Petition No. 330 of 2016. Permitting guests to comment on untried allegations in live broadcasts meant accuracy could not be guaranteed. The court aligned with Mukunya and Abisai on misdescription of conduct and departure from proceedings.

p. 10
03

Whether the award of damages was excessive

Holding

No - the trial judge considered comparative authorities and aggravating factors; there was an error in lumping exemplary and aggravated damages but the Kshs. 3,000,000 was justified.

Reasoning

Although the trial judge erred in principle by treating aggravated and exemplary damages as indistinguishable, the aggravating factors - failure to apologise after a demand notice and continued broadcasting - justified the award. The court applied the standard for interference with damages awards and declined to disturb the sums.

p. 10

Legal principles established

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  • The ingredients of defamation are that the statement must be defamatory, must refer to the plaintiff, must be published by the defendant, and must be false.
  • The defence of absolute privilege for fair and accurate reports of judicial proceedings under section 6 of the Defamation Act is lost where the broadcast departs from the pleadings and includes matter not before the court.
  • An appellate court interferes with a damages award only for an error of principle, misapprehension of evidence or facts, or an award manifestly out of proportion - not merely because it would have arrived at a different figure.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Judgment of the High Court (Kshs. 7,000,000 general damages and Kshs. 3,000,000 aggravated damages) upheld
On appeal from
High Court of Kenya at Nairobi
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Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 31(1)(a)) over an appeal from the High Court in a defamation suit

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 Limited & 2 others v Michael Kamau Mubea", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1508/eng@2024-10-25

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