Gitagama & 3 others v Wanjigi & another (Civil Appeal 388 of 2019) [2026] KECA 694 (KLR)
The bottom line
#Kenya's Court of Appeal threw out Kshs. 8 million in damages against Nation Media Group over a false obituary, ruling media houses are only liable for third-party content if negligence is proved.
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 publication of the erroneous obituary violated the respondents' rights to human dignity, freedom from torture, cruel, inhuman or degrading treatment, and privacy under Articles 28, 29 and 31 of the Constitution
- 2.Whether pain and anguish, without more, amounts to psychological torture for purposes of Article 29
- 3.Whether prior publication of information in the public domain defeats a claim of violation of the right to privacy
- 4.Whether a media house is liable for paid third-party advertisements placed by members of the public
- 5.Whether the learned Judge erred in failing to follow James Kimeu Mulinge v Nation Media Group
- 6.Whether the award of Kshs. 4,000,000 to each respondent was justified and whether the cross-appeal for liability of the 1st to 3rd appellants, compensation for the children, and enhancement of damages had merit
Key legal issues
#Whether pain and anguish amounts to torture under Article 29
No; pain and anguish, without more, does not establish torture. The claimant must prove the infliction of intense pain to body or mind and the purpose or effect of the conduct.
The Court drew on Black's Law Dictionary, the Greek Case of the European Court of Human Rights and Sonke Gender Justice, noting torture may be psychological but requires severe mental suffering intended, foreseen or designed. The learned Judge's finding rested solely on the appellants' admission that the publication caused pain and anguish. Following the Supreme Court's guidance in Ondimu v Commissioner of Police, the litigant must establish in exact terms how and when psychological torture was suffered, which the respondents failed to do.
Whether the media house was liable for the third-party obituary
No. The Court was satisfied the erroneous obituary was placed by a third party, Jared, and that the appellants took reasonable steps, including reporting to police and publishing CCTV footage, so no negligence was proved.
The name used, James Richard Wanjagi, was not the 1st respondent's known name, and the employee who received the advertisement did not recognise the photograph. Evidence of payment by Jared was availed. The appellants apologised, published corrections and explanations, reported the matter to the police and provided the photograph of the person who placed the advert. The Court held that had the respondents proved the appellants took no steps to unmask the culprit, liability would have followed, but here negligence was not demonstrated.
Whether information already in the public domain defeats the privacy claim
The Court held that prior violation of privacy does not justify further violation, but found the children's particulars had not been shown to be previously disclosed; nonetheless the petition was not brought by or on behalf of the children.
The Court acknowledged the disclosed facts - names of parents, wife, children, residence and the children's school - would ordinarily, if unlawfully disclosed, breach Article 31(c). However, the claim failed overall because the respondents could not prove violation attributable to the appellants, given the third-party origin of the advertisement and the appellants' remedial conduct.
The duty of media houses in respect of third-party content
Media houses must put mechanisms in place ensuring accuracy and verifiability of third-party information; liability attaches where negligence is proved.
While the appeal succeeded, the Court stressed that a responsible media house owes a duty to the public for every publication and cannot cede responsibility to third parties where negligence is established. This dictum preserves the reasoning of the High Court on duty of care while exonerating these appellants on the facts.
Legal principles established
#- A claim of psychological torture requires more than proof of pain and anguish; the litigant must establish in exact terms how and when they suffered such torture
- Prior publication of information in the public domain does not justify further violation of privacy unless the claimant authorised the publication
- A media house is not liable for a paid third-party advertisement where no negligence is established and it takes reasonable steps to unmask the culprit; but where negligence is proved, it cannot escape liability
- On a first appeal from petition proceedings conducted on affidavit evidence, the appellate court is under a duty to reconsider and re-evaluate the affidavit evidence and draw its own conclusions
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the trial court is set aside and substituted with an order dismissing the suit
- 3.The cross-appeal is dismissed
- 4.No order as to costs, both before the trial court and in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Petition dated 27th March 2018
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution over an appeal from the High Court in a fundamental rights petition
Relief refused
#Declaration of violation of Articles 28, 29 and 31 of the Constitution
The respondents failed to discharge the burden of proving the violations; the obituary was placed by a third party and the appellants took reasonable steps
Compensation/damages of Kshs. 4,000,000 each
Fell with the finding that no violation was proved
Cross-appeal: liability of the 1st, 2nd and 3rd appellants, compensation for the children, and enhancement of damages above Kshs. 8,000,000
The cross-appeal depended on the success of the respondents' case, which failed
Costs
No order as to costs, both before the trial court and in this appeal
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.
Consequently, we allow the appeal, set aside the judgement by the trial court and substitute therefor an order dismissing the suit. The result of allowing this appeal is that the cross appeal fails. It is therefore dismissed.
In the circumstances of this case and the unfortunate events leading to the filing of the petition, we make no order as to costs, both before the trial court and in this appeal.
we find that the respondents failed to prove, a burden which was on them, that the appellants violated the respondents’ right to dignity and privacy.
a finding that an act has caused pain and anguish, without more, does not support a claim of torture.
Where it is proved that such information finds its way into the public domain due to the negligence of the media house, they cannot avoid being held liable.
Issues in the judgment
#The judgment does not state the appeal case number, the name of the High Court judge appealed from, or the date of the decision below, and the neutral citation field is blank; these identifiers cannot be completed from the judgment itself.
Internal inconsistency in the draft as printed: the parties are variously referred to as the 4th appellant and the 4th respondent within the same passages.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitagama & 3 others v Wanjigi & another (Civil Appeal 388 of 2019) [2026] KECA 694 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal against the High Court petition dated 27th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.