The court emphasised the importance of upholding reputations in a free and rational society, as per P.O. Kiage, Judge of Appeal:

“All who would publish words of and concerning others must do so while mindful not to defame. The duty to respect and uphold the reputation of our fellows is a reasonable one in a free and rational society.”

The Court of Appeal upheld the High Court’s finding of liability against both the Orange Democratic Movement (ODM) taskforce and The Star newspaper for defaming Justice Anne Omollo and confirmed an award of KES 6 million in general damages.

Background

The case arose from a 2015 report by a taskforce appointed by the ODM party investigating the impeachment of the Kisumu County Assembly Speaker, which adversely mentioned Justice Ann Omollo. The journalist, Justus Ochieng of The Star newspaper, contacted the judge for a comment. However, after receiving a response he found unsatisfactory, Ochieng proceeded to publish an article that included allegations of financial misconduct involving the judge.

Key issues addressed by the court included whether a defamatory statement could be made even without directly naming the individual in question, whether offering the right of reply alone was sufficient to discharge the duty of care, and the scope of the defence of qualified privilege.

Key points from the court’s ruling

Defamation without direct reference by name

The court held that a statement does not need to directly name the claimant to be defamatory. It is sufficient if the publication “inescapably points” to the individual. Evidence demonstrated that the references to “Anne Omollo” in the ODM Taskforce’s report and the subsequent newspaper article were understood to refer to Justice Omollo.

Responsible journalism

The court emphasised that responsible journalism involves more than just reporting third-party allegations. When a journalist goes beyond mere reporting and specifically identifies an individual (as in this case, naming the judge), they assume a heightened duty to verify the accuracy of their claims. The journalist’s duty includes more than offering an individual a right of reply; it requires a reasonable effort to verify the truth of the statements.

Qualified privilege defence

The court clarified that the defence of qualified privilege – available for publications on matters of public interest – is contingent on adherence to responsible journalism practices. This includes verifying the information and seeking comment from the claimant. Simply believing in the truth of the statement does not justify the defence of qualified privilege.

Apportionment of liability

The court held that both the taskforce and The Star were equally culpable under the “repetition rule,” which treats repetition of defamatory statements as equivalent to their original publication. Distinguishing their roles was deemed impractical as the defamatory context of the taskforce’s report was amplified by The Star’s publication.

Damages and apology

The Court of Appeal upheld the High Court’s award of KES 6 million in damages, noting that The Star had failed to issue an apology in a timely manner. The court stressed the importance of promptly publishing an apology, which could mitigate the damage to the claimant’s reputation and reduce the damages payable. A belated apology, as in this case nine years later, may not effectively repair the harm caused and hence damages alone cannot be adequate. The court also emphasised the restorative value of a court-ordered apology, requiring The Star to publish an apology for three consecutive days.

Key takeaways for public entities and the media

Public taskforces must verify facts before publication, especially when dealing with sensitive allegations that may harm reputations, even if the information is sourced from reliable channels.

Media entities cannot rely solely on third-party reports without independent verification when publishing serious accusations.

The judgment underscores the serious consequences of defamation, including significant monetary awards and court-mandated apologies. Offering the right of reply alone does not absolve the journalist of responsibility for defamatory content. Journalists must adhere to responsible reporting standards to invoke the defence of qualified privilege, and a timely public apology can significantly reduce damages in defamation cases.

Conclusion

The judgment in Ongwen serves as a reminder of the delicate balance between freedom of expression and the right to reputation. Both investigative bodies and the media must exercise caution and adhere to principles of responsible publication to avoid liability for defamation.