Appeal judges criticise huge libel awards

The Court of Appeal yesterday criticised judges for giving hefty awards in libel and defamation cases.

Judges Philip Tunoi, Riaga Omollo and Erastus Githinji said such awards lacked a judicial basis because the judges had ignored the fundamental principles of awarding libel damages.

The criticism came even as they awarded chief justice Evan Gicheru Sh6 million in a defamation suit against Mr Andrew Morton, author of a Moi biography — Moi: The Making of an African Statesman — and publisher Michael O'Mara Books.

Mr justice Gicheru had appealed against a Sh2,250,000 High Court award, saying it was too little.

In a landmark ruling, which is expected to impact on libel and defamation awards in the future, the judges described such hefty awards as manifestly excessive and said they should not be used as precedents.

They were referring to multi-million-shilling awards awarded to politicians and senior civil servants who have sued different publications for libel and defamation.

"The courts concerned appeared to have ignored basic fundamental principles of awarding damages in libel cases," the judges said in reference to the previous awards.

They cited a Sh30 million award to Keiyo South MP Nicholas Biwott against Clays Ltd and Dr Ian West for defamation in the book Dr Ian West's Casebook.

Other awards cited include Sh1.5m given to Nairobi lawyer George Oraro against Mr Barack Weston Mbaja, a brother of murdered Foreign minister Robert Ouko. Mr Oraro sued over an affidavit signed by Mr Mbaja in the US but published in Kenya.

Other cases are a Sh10 million award to a former aide to Mr Moi, Mr Joshua Kulei, against Kalamka Ltd, publishers of the The People daily. A former State House Controller, Mr Abraham Kiptanui, received Sh3.5m in a defamation suit against the now defunct Target newsletter.

Mombasa lawyer David Musinga, who is now a High Court judge, was granted Sh10 million award for libellous statements in a local daily.

Others include Sh17m granted to former Cabinet minister Chris Obure against The Weekly Citizen, Meru lawyer Charles Kariuki (Sh20 million from another publication) and Mr justice Akilano Akiwumi, who was a member of the Gicheru commission (Sh3 million from Mr Morton and his publishers).

Mr Justice Tunoi disagreed with a plea by the CJ to adopt an award similar to that given to Mr Biwott.

The award in the Biwott case, he said, was of no persuasive material and was a "compromised deal."

Mr Justice Gicheru said a passage in the book offended him by suggesting he had been compromised in the discharge of his duties by a party implicated in the murder of Dr Ouko. The CJ chaired a judicial inquiry into the death.

The article in the book suggested he was corrupt and was improper to be a judge, the CJ had said.

Lawyer Fred Ngatia said the suggestion was bad and offensive, had no mitigating circumstances and was malicious.

In her ruling, Lady Justice Aluoch had held that the passage complained of was defamatory but declined to stop the author from publishing the words complained of because, she argued, the CJ had failed to produce in court the hard cover of the book as evidence.

Yesterday the three appeal judges said lady justice Aluoch had overlooked fundamental aspects of libel.

They said it was manifestly clear the false charges and insinuations against the CJ were without foundation.

The allegations were in print and persisted permanently for generations to come because the author had refused to expunge them from the book.

The judges said the award by Justice Aluoch was based on an incorrect principle and was inadequate.

Mr Justice Githinji said the libel in the case not only touched on the CJ's personal integrity, professional reputation and honour but also was published to the world.