Nation Newspapers Ltd v Gilbert Gibendi

High Court, at Kakamega

May 29, 2002

Waweru J

Civil Appeal No 14 of 2000

Defamation – libel – defence of fair comment on a matter of public interest - libel suit against a newspaper publisher – publisher pleading fair comment–– matters that a plaintiff should establish to dislodge defence of fair comment – malice, ill will, spite or other improper motive by the defendant - award of general damages for defamation - duty of plaintiff to establish not only the defamation but also the damage suffered to his reputation or character.

Damages – general damages–– for defamation – matters that a claimant needs to establish for an award of damages – duty to establish both the defamation and the damage to reputation or character.

The respondent brought a suit in the subordinate court against the appellant alleging that he had been defamed by a story published by the appellant which alleged that he had criminally assaulted a school teacher, misused school property and that he was unduly influencing the transfer of teachers as well as acting as a spy for the school’s headteacher. In its defence, the appellant pleaded that the story was fair comment on a matter of public interest. The subordinate court found that the respondent had been defamed by the appellant and awarded him Kshs 100,000 in damages. The appellant appealed.

Held:

1. The story published by the appellant was defamatory of the respondent and none of the allegations about him contained in the story were true in substance and in fact.

2. The appellant had pleaded the defence of fair comment on a matter of public interest, ie, qualified privilege. To defeat that defence, the respondent needed to prove actual malice, which is ill-will or spite or any indirect or improper motive in the mind of the appellant at the time of the publication.

3. There was no evidence that in publishing the words complained of, the appellant had acted from an indirect or improper motive such as spite, ill-will or jealousy.

4. The matter was of public interest. It concerned a disturbance at a public school which was investigated by the District Education Officer. The appellant’s defence of fair comment on a matter of public interest therefore succeeded and the respondent’s action should have failed. The trial court had failed to address this issue in its judgment.

5. In order to be awarded damages for defamation, it is not sufficient to establish only the defamation. The plaintiff must lead evidence of actual damage to his reputation and character in order to enable the court to assess an appropriate award. The respondent in this case did not lead evidence to show the damage to his character and reputation and there was no basis for the award of Kshs 100,000.

Appeal allowed, respondent’s suit in the subordinate court dismissed, costs in both courts to the appellant.

Cases

No cases referred to.

Statutes

Defamation Act (cap 36) section 12

Advocates

G K Mbiyu for the Appellant.

A M Momanyi Birundu for the Respondent