Machira v Mwangi & another
High Court, at Nairobi September 7, 2001
Civil Case No 1709 of 1996
Defamation – libel – assessment of general and aggravated damages for defamation – circumstances from which malice can be inferred on the part of the person publishing a defamatory statement – pictures and statements published in daily newspapers giving the meaning that the plaintiff, an advocate, had swindled his client of her money – defendants failing to publish the true facts even after the defendant had presented them – whether the plaintiff had been defamed – whether malice could be inferred on the part of the defendants – quantum of damages.
Damages - general damages – defamation –assessment of general and aggravated damages for defamation by libel - circumstances from which malice can be inferred on the part of the person publishing a defamatory statement – pictures and statements published in daily newspapers giving the meaning that the plaintiff, an advocate, had swindled his client of her money – defendants failing to publish the true facts even after the defendant had presented them – whether the plaintiff had been defamed – whether malice could be inferred on the part of the defendants – quantum of damages.
The plaintiff brought a suit against the defendants for defamation asking for general and exemplary damages and for the publication of an apology for certain allegedly libelous matter published in two daily newspapers having a national circulation. The plaintiff later brought an application to strike out the defendants’ defence under Order VI rule 13(1)(b), (c) and (d) of the Civil Procedure Rules but the application was dismissed. Upon appeal to the Court of Appeal against the order of dismissal, the defendants’ defence was struck out and interlocutory judgment was entered for the plaintiff. The appellate court then directed that the suit be heard on the issue of the amount of damages to which the plaintiff was entitled.
The plaintiff complained that the defendants had defamed him by publishing in their two daily newspapers statements which in their ordinary and natural meaning were understood to mean that the plaintiff, who was an advocate, had swindled his supposed client of her money. He testified that as a result of the defamation, his reputation and integrity both personally and as an advocate had been injured and he had suffered distress, agony and mental torture and brought into public contempt.
1. The defendants’ defence having been struck out, there was no defence against the plaintiff’s allegations regarding the defamatory nature of the defendants’ publications.
2. The statements published had the effect of lowering the plaintiff’s reputation personally and as an advocate in the minds of right thinking members of the community and made them shun or avoid him.
3. In defamation, malice on the part of the defendant can be inferred where in publishing the information he knows that the publication is false or does not care whether it is true or false. The defendants’ publication in this case was malicious.
4. The plaintiff was entitled to Kshs. 8 Million as compensatory damages, Ksh. 2 Million as aggravated damages and Kshs. 200,000 in lieu if a timely and appropriate apology.
Judgment for the plaintiff.
1. Cassel & Co Ltd v Broome  1 All ER 801;  AC 1027;  2 WLR 645
2. John v MGN Ltd  2 All ER 35;  3 WLR 593
3. Kulei, Joshua v Kalamka Ltd High Court Civil Case No 375 of 1997
4. Biwott v Clays Ltd  2 EA 334
5. Njoroge v Kenya Commercial Bank Ltd  LLR 2357
6. Sutcliffe v Pressdram Ltd  1 All ER 269;  1 QB 153;  2 WLR 271
7. Khasakhala, Eric Edward v Jeremiah Aurah & 2 others High Court Civil Case No 1709 of 1987
8. Doshi, Lalit v Nation Newspapers High Court Civil Case No 3750 of 1994
9. Bonnard & another v Perryman (1891-4) All ER 965;  2 Ch 269
10. Fraser v Evans & others  1 All ER 8;  1 QB 349;  3 WLR 1172.
11. Kiptanui, Abraham Kipsang v Francis Mwaniki & 4 others High Court Civil Case No 42 of 1987
1. Rampton, R (Ed) (1983) Duncan and Neil on Defamation London: Sweet & Maxwell 2nd Edn.
2. Walker, R et al (Eds) (1985) Carter-Ruck on Libel and Slander London: Butterworths & Co Ltd 4th Edn p 66
3. Price, D; Duodo, K (Eds) (1998) Defamation Law and Practice London: Sweet and Maxwell p 143 para 14.07
1. Constitution of Kenya section 79(1)
2. Defamation Act (cap 36) section 16 (A)