Read judgments
The six advocates at the centre of this story complained that, early in 2006, titles of the Nation media group carried stories about their involvement and fees earned in significant court cases. One article was headed, ‘State paid six Nairobi lawyers $1m to fight five day case’, with a further headline, ‘Private lawyers earning millions from Kenya government’.
The court decided that one of the group, Lucy Kambuni, should bring her complaint first, as a test case. The understanding was that, depending on the outcome of that case, the other advocates would then either bring their individual matters based on the court’s findings, or drop their legal action against the media group.
Kambuni’s case, decided in 2020, set the ball rolling, with the court finding that she had indeed been defamed by the articles and awarding her Kshs 12 000 000. Four others followed, with judgments delivered earlier this month, awarding each of the advocates Kshs 13 200 000. One case is still outstanding, but the damages that the courts have awarded so far now amount to Kshs 64 800 000 (more than US$535 000).
Worrying
These awards come as media watchdog body, Article 19, has expressed growing concern about the ‘worrying trend’ it sees in Kenya, namely that the courts are ‘issuing exorbitant damages in civil suits against media organisations and individual journalists.’
In the initial test case, Judge Cecilia Githua heard that, according to Kambuni, the statements made about her and the other lawyers were not only false, malicious and defamatory, but were also calculated to injure, discredit and destroy their personal and professional image as prominent advocates of long standing.
Kambuni, and subsequently the other advocates, said the publications had ‘seriously and irreparably’ damaged their reputation, integrity and credibility and that they had suffered ‘distress, humiliation, agony, mental torture and extreme embarrassment’.
Falsehoods
Kambuni explained how it had happened that she and the other five advocates mentioned in the articles, had come to be retained in the cases by the government, and the basis for their fee arrangement. She said the articles ‘did not publish the full and true facts surrounding the payment’ and that the reports ‘were not only exaggerated but contained falsehoods and innuendos.’
Further, the newspapers concerned had not sought any clarification or comment from her before publication to check whether their information was correct. If they had done so, she would have been willing to provide the correct information to them, she said.
She said the papers had portrayed her ‘as a greedy and exploitive advocate [part of] a clique of lawyers who monopolised government cases without regard to the need for capacity building in the state law office [and that] she had been retained … for reasons other than her competence.’
Spite
She said the publication was actuated by ‘malice, contempt and spite’, and was aimed at ‘destroying the high esteem in which she was held in society and the legal profession’.
According to the media house, however, the words complained of were taken out of context. They ‘merely disclosed facts surrounding the appointment of lawyers to render legal services to the government and the amount paid for such service.’
But the judge found the information in the articles was false, and that the reasonable reader would have had no difficulty in concluding that the appointment of the six advocates was ‘irregular and unprocedural’, involving ‘a conspiracy with officials of the ministry of justice, aimed at locking out other qualified advocates from accessing state briefs’.
Reckless
Moreover, the newspapers offered neither a retraction nor an apology, even though the six had asked for both.
‘I have absolutely no hesitation in finding that [the newspapers] recklessly published the publications without making any inquiry into the facts, which is by itself evidence of malice,’ said the judge.
While she agreed with the newspapers concerned that these were matters of public interest, they did not produce any evidence to back their claim that the publications ‘consisted of facts which were true or substantially true’ and that opinions expressed in them were based on fact.
Destruction
The judge awarded a total of Kshs 12 000 000 to Kambuni, but this was topped in all four of the subsequent judgments, delivered last week.
In all the latest cases, the Nation group argued that the court should not award high damages since the advocates had not shown the ‘destruction’ of their personal life as they had claimed; they were still practising at the high court and their professional careers have ‘not been destroyed’.
The judge who awarded damages in the most recent four decisions, Joseph Kiplagat Sergon, wrote that the media house ‘has neither apologised nor retracted the defaming articles for 14 years.’
No remorse
‘An apology or retraction would serve as a mitigating factor [for the newspaper group] and reduce its “punishment”.
‘It has in the course of proceedings not demonstrated any remorse … and this in my view deserves punishment.
‘However, an apology would have no effect on the damage to the plaintiffs’ reputation [since] the articles were published more than 14 years ago and have not been republished since. Nevertheless, it does not cancel out the defendant’s wrongs.’
Chilling
Judge Sergon then awarded a separate amount of Kshs 1 000 000 as damages ‘in lieu of an apology’, which, with other categories of damages, brought the amount to be paid to each of the four advocates, to Kshs 13 200 000 plus interest and costs.
Article 17 has not yet reacted to the latest round of defamation awards, but according to its most recent comment on the size of damages awarded by Kenyan courts, published in 2021, it is observing the award of ‘disproportionate damages against the media by Kenyan courts’, and that these awards are ‘threatening the sustainability of media in Kenya’.
In that statement, the regional director of Article 17, Mugambi Kiai, urged: ‘In assessing the range of financial awards, the potential chilling effect of the award on freedom of expression should be taken into account.’
* 'A matter of justice', Legalbrief, 18 October 2022
