By Andrew Kariuki
The Court of Appeal has stopped further proceedings in a defamation case filed by Senator Moses Wetangula against the British Broadcasting Corporation (BBC), pending the hearing of BBC’s appeal challenging earlier High Court decisions in the matter.
The BBC moved to the appellate court through a motion dated March 3, 2025, seeking a stay of the High Court trial arising from Wetangula’s suit over the 2015 Panorama documentary, “The Secret Bribes of Big Tobacco.” Wetangula alleges the programme defamed him by implying he received unlawful payments from British American Tobacco (BAT). He is seeking damages, a permanent injunction, and costs.
Although the BBC admitted publishing the documentary, it denied defamation, malice, or recklessness, and pleaded qualified privilege while noting that BAT had admitted in UK proceedings that certain payments were unlawful.
The stay application arose after two consecutive setbacks for the broadcaster in the High Court.
In October 2023, Justice Meoli dismissed the BBC’s request for a Letter of Request to the High Court in England to obtain evidence, including BAT’s internal investigation report.
The judge found the request vague and lacking sufficient particulars.
A second application seeking a stay of High Court proceedings was later dismissed in November 2024 for delay and failure to demonstrate that a stay was necessary in the interests of justice.
At the Court of Appeal, BBC counsel Mr. Inamdar argued that the intended appeal is arguable and raises key questions on whether the High Court applied the correct legal test in rejecting the Letter of Request under Section 54 of the Civil Procedure Act and Order 28 rule 4.
He submitted that allowing the High Court matter to proceed without the contested evidence would render the appeal nugatory and violate the broadcaster’s constitutional right to a fair hearing under Article 50.
Wetangula opposed the motion, arguing that the appeal was frivolous and amounted to an attempt to gather evidence the BBC should have obtained before publishing the documentary.
His counsel also claimed the supporting affidavit was improperly sworn by the BBC’s advocates and that no prejudice had been shown to justify halting the trial.
The Court of Appeal rejected the challenge to the affidavit, holding that counsel had deposed to matters within his professional knowledge. It also found that the three-month interval between the High Court ruling and the BBC’s application was not an unreasonable delay.
On the merits, the court held that the intended appeal is arguable and raises genuine legal issues, particularly on the interpretation and application of provisions governing Letters of Request to foreign courts. It further found that allowing the High Court proceedings to continue risked undermining the right to a fair hearing, noting that the right is non-derogable under Article 25(c) of the Constitution.
The court therefore issued an order staying further proceedings in High Court Civil Case No. 44 of 2015 until the appeal is heard and determined.
Costs will abide the outcome of the appeal.
