Romageco Kenya Ltd v Kisigwa (Civil Appeal E025 of 2020) [2026] KECA 1132 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a travel agent's libel win against Kenya Breweries but cut her damages from Sh7 million to Sh2 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the test, in an action for libel per se, of words capable of defamatory meaning such as to be actionable per se, particularly where words are spoken of a person in the way of his or her office, profession or calling?
- 2.What is the effect of a statutory time-bar under section 4(2) of the Limitation of Actions Act on the defendant's counterclaim for moneys allegedly due, and can a time-barred claim be used as a defence by way of set-off or recoupment?
- 3.Was the qualified privilege pleaded in the defence defeated by malice?
- 4.Were the damages awarded excessive or out of proportion to the injury complained of?
Key legal issues
#Test of libel per se where words are spoken of a person in the way of office, profession or calling
Words spoken of a person in the way of his or her office, profession or calling which contain defamatory imputations likely to injure the plaintiff in that office, profession or calling are actionable per se; in such a case the general rule that special damage must be alleged and proved does not apply
The Court applied the English common law as adopted in Kenya, that in an action for libel per se the plaintiff need not plead or prove special damage where the words contain defamatory imputations which are likely to injure the plaintiff in his or her office, profession or calling. The words accusing the respondent of obtaining money by trickery and of fraud in connection with tickets imputed fraud and dishonesty in the way of her office, profession or calling as a travel agent, and so were actionable per se.
Effect of the statutory time-bar on the counterclaim and the doctrine of recoupment
A claim barred by section 4(2) of the Limitation of Actions Act cannot be used as a sword (i.e. as a counterclaim), but a time-barred claim may still be used as a shield, i.e. as a defence of set-off or recoupment where it arises directly out of the same transaction
The Court relied on the Indian Supreme Court decision in Bombay Dyeing & Manufacturing Co. Ltd. v State of Bombay and other authorities, holding that whereas a claim for damages founded on an unliquidated demand would, if sued upon, be time-barred, the position is different where the defendant's claim arises directly out of the same transaction; in such a case the claim for unliquidated damages can be used as a defence by way of set-off, even though the counterclaim as such is statute-barred.
Malice and the plea of qualified privilege
The plea of qualified privilege was defeated by malice; the stricture of malice in the words used by the appellant meant the defence could not stand
The Court held that even if the occasion on which the words were published was privileged, the plea of qualified privilege was defeated by malice. The stricture of malice in the words used, accusing the respondent of obtaining money by trickery, of fraud and of being a conwoman, meant that the defence of qualified privilege could not avail the appellant.
Whether the damages awarded by the High Court were excessive
The total award of Kshs. 7,000,000/- was out of proportion to the injury complained of; the Court of Appeal set aside both the general and exemplary damages and substituted a global award of Kshs. 2,000,000/-
The Court noted that in assessing damages in an action for libel it must have regard to all the circumstances of the case, including the six factors enunciated in Gautier v Pro-Fit Ltd and applied in Phineas Nyagah v Isaac Gathaithi. Having regard to those factors, the Court concluded that the total award of Kshs. 7,000,000/- (Kshs. 6,500,000/- general damages and Kshs. 500,000/- exemplary damages) was out of proportion to the injury complained of, and substituted a global award of Kshs. 2,000,000/- with interest.
Propriety of striking out the defence and entering judgment on admission under Order XXXV rule 1
The High Court properly entered judgment on admission under Order XXXV rule 1; the learned Judge's reliance on New Zealand Insurance Co. Ltd v Okafor (cited in Jamil Hussein v Lyombe A. H. Wambi) was in order, and it mattered not whether the admission arose by mistake or inadvertence
The Court applied the principle that where an admission is made by mistake, inadvertence or otherwise, the remedy is to have the matter returned to the court which made the order, not to resist judgment on admission. The appellant had admitted liability for the words complained of by admitting that they referred to the respondent; the admission therefore grounded judgment under Order XXXV rule 1.
Legal principles established
#- In an action for libel per se, words spoken of a person in the way of his or her office, profession or calling are actionable per se if they contain defamatory imputations which are likely to injure the plaintiff in his or her profession or calling
- A time-barred debt may be used only as a shield, not as a sword; a counterclaim founded on a time-barred claim fails
- A time-barred claim may be used as a defence of set-off or recoupment where the plaintiff's claim is in respect of the same matter or arises directly out of the same transaction
- Malice defeats a plea of qualified privilege; even where the occasion is privileged, defamatory words published with express or implied malice are actionable
- In awarding damages, the court must have regard to (a) the conduct of plaintiff and defendant, (b) the plaintiff's position and standing, (c) the nature and gravity of the charges, (d) the mode and extent of publication, (e) the absence or refusal of retraction or apology, and (f) the whole conduct of the defendant from publication to verdict; damages must be proportionate and not out of proportion to the injury
Court orders
#- 1.The appeal was allowed to the limited extent that the award of Kshs. 6,500,000/- general damages and Kshs. 500,000/- exemplary damages was substituted with a global award of Kshs. 2,000,000/-
- 2.Judgment for Kshs. 2,000,000/- entered for the plaintiff/respondent against the defendant/appellant
- 3.The order striking out the defendant/appellant's defence and entering judgment on admission under Order XXXV rule 1 of the Civil Procedure Rules was affirmed
- 4.The defendant's counterclaim was dismissed as statute-barred under section 4(2) of the Limitation of Actions Act
- 5.Costs of the appeal to the plaintiff/respondent
- 6.Interest on Kshs. 1,000,000/- from 26th July 1991 and on Kshs. 1,000,000/- from 15th June 1994 at court rates until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- HCCC No. 1211 of 1996
- Jurisdiction invoked
- Section 72(1)(c) of the Civil Procedure Act (appeal as of right from a decree in a case certified by the High Court to involve a substantial question of law of general importance, and upon certificate of the High Court under section 74)
Relief refused
#The appellant's counterclaim for moneys allegedly due from the respondent
The counterclaim was statute-barred under section 4(2) of the Limitation of Actions Act and could not be saved by the doctrine of recoupment
The appellant's plea of qualified privilege
The stricture of malice defeated any qualified privilege that may have attached to the defamatory words spoken of the respondent
The appellant's contention that the damages awarded were excessive
Rejected only in part; the Court of Appeal found the total award disproportionate and substituted its own lower global award rather than rejecting the contention outright
Costs
Costs of the appeal to the plaintiff/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.
such words are actionable per se if they contain defamatory imputations which are likely to injure the plaintiff in his or her profession or calling
the total award of Kshs. 7,000,000/- was out of proportion to the injury complained of
the sting of malice in the words used defeated the plea of qualified privilege
where the defendant's claim is in respect of the same matter or arises directly out of the same transaction, the claim for unliquidated damages can be used as a defence by way of set-off
such claim can only be a shield and not a sword, otherwise it would be time-barred under section 4(2) of the Limitation of Actions Act
it did not matter whether the admission was made by mistake, inadvertence or otherwise; the remedy was to have the matter returned to the court which made the order
in assessing damages in an action for libel the Court has to have regard to all the circumstances of the case, and (among other matters) the six factors which were enunciated
The appeal was allowed to the extent that the award of Kshs. 6,500,000/- general damages and Kshs. 500,000/- exemplary damages was set aside and substituted with a global award of Kshs. 2,000,000/-
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Romageco Kenya Ltd v Kisigwa (Civil Appeal E025 of 2020) [2026] KECA 1132 (KLR)", Case Analysis (2001). Civil Appeal 251 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1132/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.