1. The Appellant herein, Dr. Selina Vukinu Ambe has brought this appeal being aggrieved by the decision of the Hon. C.K. Cheptoo, Principal Magistrate, delivered on the 6th October, 2023 in Milimani CMCC No. 40 of 2022.
2. The Appellant presented the following grounds of appeal vide the Memorandum of Appeal dated 30th April 2024:
a. That the learned Magistrate erred in law and fact by finding that the Appellant had failed to establish the necessary ingredients required to prove the tort of defamation against the Respondent.
b. That the learned Magistrate erred in law and fact by failing to properly apply the test of fair comments by determining that the words ‘just a thought could this person be having an issue that needs counselling’ amounted to fair comment while they were not based on any proven facts.
c. That the learned Magistrate erred in law and fact by finding that the comments made by the Respondent were on a matter of public interest.
d. That the learned Magistrate erred in law and fact by failing to properly and adequately consider the context in which the words were used by the Respondent.
e. That the learned Magistrate erred in law and fact when she strangely and contrary to the evidence on record held that the Respondent’s assertions of the Appellant were not defamatory.
f. That the court erred in law by failing to properly consider the award of costs.
3. The Appellant proposed that the instant appeal be allowed and the judgement of the lower court be set aside and that costs be awarded to the Appellant.
4. This being a first appeal, this court is under a duty to re-evaluate, re-analyse and re-assess the evidence that was taken before the trial court and make its own conclusions. This court must however have it in mind that unlike the trial court, it did not have the advantage of seeing or hearing the witnesses when they testified (see the case of Sielle v Associated Motor Boat Co. Ltd 1969] E.A. 123)
5. The Appellant filed the suit before the lower court vide a plaint dated 20th July, 2018, premised on the tort of defamation whereby she sought damages for defamation as well as an injunction against the Respondent from posting or causing to be posted defamatory words against her.
6. The Appellant pleaded in the plaint that on 19th May, 2018 at 10.03pm, the Respondent maliciously and without any justifiable cause posted in a WhatsApp group (christened Cluster Three) the following words about her:
“Just a thought-Could this person be having an issue that needs counselling”.
7. It was the Appellant’s case that the Respondent’s words were in response to a heated debate on WhatsApp group in reaction to her decision to obtain a court order stopping any development in an open ground until a filed case was heard and determined.
8. The Appellant averred that the Respondent’s post generated heated and adverse responses against her on the platform from the other 70 members of the group and from the responses it was clear that her estimation had been lowered and subjected to ridicule given that the allegations concerning her were untrue.
9. The Appellant testified in support of her case as PW1, adopting her witness statement dated 20th July, 2018 as her evidence in chief. She testified that it was her husband who informed her of the Respondent’s post after which he shared a screenshot of the same with her. It was her further testimony that she believed that the comments may have gone beyond the WhatsApp group both within and outside Kenya.
10. In cross-examination the Appellant stated that prior to the Respondent’s post, she had been removed from the said WhatsApp group which was for the residents Cluster 3 in Green Park Estate and had never been reinstated in the group. The Appellant further admitted that the WhatsApp group was not for the public but was confined to the members of Cluster 3 in Green Park Estate.
11. Jesse Ambe, the Appellant’s spouse testified as PW2 and told the trial court that he logged on to the WhatsApp group on a date material to this matter and saw the Respondents post which he contended was not only false but greatly embarrassed the Appellant and lowered her estimation before other members of the group.
12. In cross-examination PW2 stated that he is the one who forwarded the Respondent’s post to the Appellant.
13. In her defence, the Respondent filed a statement of defence dated 30th November, 2018 in which she denied that her post, which was published in a closed WhatsApp group that comprised neighbours in a residential estate was defamatory in any way or that the same affected the Appellant’s standing. In her testimony the Respondent stated that the Appellant was not known to her and that her post was only based on the preceding comments in the group.
14. In cross-examination the Respondent told the trial court that at the time of making the post, she did not reside in the estate but in Buru Buru and that she was a member of the group as she had a house in the estate. She stated that the words “the person needs counselling” did not mean that the person was not normal and that she had not apologized to the Appellant as she saw no reason to do so.
15. The trial court set out the issues for determination as follows:
i. Whether the defendant’s post on the Cluster 3 Estate WhatsApp group was defamatory against the plaintiff.
ii. Whether the plaintiff’s character and reputation were injured by the alleged post.
iii. Who should bear the costs of the suit?
16. In her determination rendered on 6th October, 2023, Hon. C.K. Cheptoo reached the finding that the Appellant did not prove that she was defamed by the Respondent as the comment made by the Respondent was on the basis of a conversation that was at the time ongoing. She also found that the words complained of were not malicious or foul as there was no evidence of a bad relationship between the parties before.
17. The learned trial Magistrate held that the words published by the Respondent were a fair comment. In the end, the trial court held that the Appellant was not entitled to the reliefs sought.
18. Having re-evaluated, re-analyzed and re-assessed the evidence tendered before the trial court, and having perused and considered the record of the trial court and the the grounds of appeal that the Appellant presented and the submissions filed by both parties, I deduce the issues for determination in the present appeal to be as follows:
i. Whether the Appellant proved his claim for defamation against the Respondents.
ii. Whether the trial magistrate erred in dismissing the Appellant’s case.
19. As a preliminary issue, one will notice that the Appellant’s case was anchored on a post made on WhatsApp group and that the evidence of the same was presented in the form of screenshots. The same without doubt amounted to electronic evidence in respect of which the law, under Sections 106A and 106B of the Evidence Act required that a certificate under the said provisions be produced for the same to be admissible.
20. Sections 106A and 106B of the Evidence Act govern the production of electronic records as evidence. Section 106A provides that electronic records may be proved in accordance with Section 106B. Section 106B provides as follows:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as "computer output") shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.
(2) The conditions mentioned in subsection (1), in respect of a computer output, are the following—
(a) the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of subsection (2) was regularly performed by computers, whether—
(a) by combination of computers operating in succession over that period; or
(b) by different computers operating in succession over that period; or
(c) in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any matters to which conditions mentioned in subsection (2) relate; and
(d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.
(5) For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment, whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
21. There is also Section 65(8) of the Evidence Act which provides as follows:
(8) In any proceedings under this Act where it is desired to give a computer print-out or statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say—
(a) identifying a document containing a print-out or statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) dealing with any of the matters to which conditions mentioned in the subsection (6) relate, which is certified by a person holding a responsible position in relation to the operation of the relevant device or the management of the activities to which the document relates in the ordinary course of business -
–shall be admissible in evidence.
22. What is the import of the foregoing provisions of the Evidence Act as regards the screenshots that were produced by the Appellant before the trial court?
23. The answer to this question is to be found in the authority of Bhavna Patel Mandaliya v Chetan Aroon Solanki [2021] eKLR where the court (Meoli J) observed as follows:
“5. On a plain reading, the above sections impose similar conditions for the production of documentary and electronic record evidence. Secondly section 106 A as read with section 106B (4) require that the certificate envisaged be produced where it is desired to produce electronic records as evidence. Emails and Facebook account records (document no. 1-14, & 22 in the Plaintiff’s List of Documents dated 30th January 2019) such as proposed to be produced by the Plaintiff herein constitute electronic evidence and the Plaintiff is required to tender the certificate envisaged in section 106B (4) in order to do so.
6. The Court of Appeal in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR while discussing the application of Section 106 (B) observed that:
“Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.”
In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced”.
7. The court proceeded to consider the requisite contents of a certificate meeting the conditions in the section before stating that:
“The Evidence Act does not provide the format the certificate required under sub-section 106B (2) thereof should take. The certificate can therefore take any form including averments in the affidavit of the recorder.”
8. Similarly, in John Lokitare Lodinyo v I.E.B.C and 2 Others [2018] eKLR the Court of Appeal in reiterating its above decision stated that:
“Essentially, the sections provide that electronic evidence which is printed out shall be treated like documentary evidence and will be admissible without production of the computer used to generate the information. The appellant claimed that his technical team downloaded the forms and had them printed. He admitted that the forms were from the IEBC public portal. Ordinarily, this would have meant accessing the IEBC portal, which one could only do if they had access to the internet, proceeding to log onto the IEBC portal page, clicking on the Forms 35A uploaded on Kacheliba Constituency, downloading the Forms 35A onto the computer’s hard disk and finally printing the documents via a printer connected to the computer… It is at this juncture that the provisions of Section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do.”
9. The Plaintiff in this case cannot run away from the requirements of section 106 A and B of the Evidence Act, whether the proposed electronic evidence was retrieved by cybercrime personnel or not. Secondly, the Defendant could only raise the objection at the hearing stage and not earlier. In the result, the Court upholds the Defendant’s objection in respect of documents no. 2-14, & 22 contained in the Plaintiff’s List of Documents dated 30th January 2019.
24. The above provisions of the Evidence Act impose conditions for the production of electronic record evidence. The same require that a certificate be produced where it is desired to produce such records as evidence. WhatsApp account records constitute such electronic evidence and the Appellant was mandatorily required to tender the certificate envisaged in the above provisions for the screenshots to be admitted as evidence. That was not done, with the result that the WhatsApp screenshots were inadmissible.
25. The Appellant’s case was based on the screenshots forwarded to her by her husband and as such having found that the same were inadmissible, it is my view that the Appellant’s case ought to have been dismissed, without much ado.
26. Be that as it may, I will proceed to consider the Appellant’s other evidence before the trial court keeping it in mind that the Respondent admitted that she had authored/made the impugned post.
27. According to the Appellant’s pleadings, the Respondent made the post on the 19th May 2018 at 10.03pm that:
“Just a thought-Could this person be having an issue that needs counselling”
28. The Appellant averred that the Respondent’s post was defamatory and lowered her estimation before other members of the group and that she believed that the post had circulated outside the group both within and outside the country. There was however no evidence provided that the post was distributed beyond the WhatsApp group.
29. The Respondent offered the defence of fair comment stating that the Appellant was not known to her and that her comment was based on the preceding comments or conversation made in the WhatsApp group.
30. Black Law’s Dictionary 8th Edition defines defamation as "the act of harming the reputation of another by making a false statement to a third person.
31. In Halsbury’s Laws of England 4th Edition Volume 28, a defamatory statement is defined as: -
“…a statement which tends to lower a person in the estimation of the right-thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt ridicule to convey any imputation on him disparaging or injuries to him in office, profession, calling, trade or business.”
32. The Court of Appeal in SMW v ZWM [2015] eKLR, (Karanja, Mwilu & Azangalala JJ.A) held:
“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”
33. Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25.1 states that the law of defamation is primarily concerned with the protection of a person’s reputation and not his or her character.
34. The elements of defamation were outlined by the Court of Appeal in cases of Selina Patani & another v Dhiranji v Patani [2019] eKLR and Raphael Lukale v Elizabeth Mayabi & another [2018] eKLR as follows:
i. The statement must be defamatory.
ii. The statement must refer to the plaintiff.
iii. The statement must be published by the defendant.
iv. The statement must be false.
35. In the case of Phineas Nyaga vs Gitobu Imanyara [2013] eKLR it was held that defamation was not about publication of falsehoods against a Plaintiff but rather, the complaining party must show that the published falsehood disparaged his reputation and lowered him in the estimation of right-thinking members of society generally.
36. In the case of SMW vs ZVM (supra), the Court of Appeal held that in determining the words for purposes of defamation, the court does not employ legal construction but that the words complained of must be construed in their natural and ordinary meaning.
37. The Appellant’s case was that the Respondent’s publication of the words reproduced above was malicious and defamatory and calculated to injure, disparage and lower her esteem among right-thinking members of the society and that the same was posted out of malevolence and spite without any justifiable cause. She pointed out that in her Plaint that despite notice of intention to sue having been served, the Respondent had refused to apologize and/or publish an apology to all persons to whom the WhatsApp message had been delivered.
38. There is no doubt that it was the Respondent who posted the impugned post. If anything, the Respondent admitted that she authored it. I however note that the message did not refer to the Appellant by name. The question of her identity and the circumstances under which the message was sent were pertinent issues in determining whether or not the message she had complained about was defamatory. That could only be ascertained from the context of the conversation in the group.
39. A careful perusal of the group chats that were produced vide the screenshots showed that several members in the WhatsApp group did not appear to know who had obtained the court order stopping the future upgrades that were to be done on the playground at Cluster 3 within Green Park Estate. There were comments such as:
“Aiyah! Court order? From where/who?”
“Aje sasa? Who? What?”
“Well if the person doing it doesn’t have kids they wouldn’t share our interests”
“Whoever does this is of course assuming that 70 residents don’t have a say on how to manage their playground”
“Just a thought- could this person be having an issue that needs counselling?”
40. It is not clear from the Respondent’s post whether she knew who this person was whom she was referring to in her post. She testified before the trial court and stated that the Appellant was not known to her at the time of the publication and her testimony remained uncontroverted.
41. The evidence adduced by the Appellant before the trial court was that she had obtained a court order halting construction within Cluster 3 of the Estate.
42. The Appellant’s case was significantly weakened when she failed to call at least one (1) witness from the WhatsApp group who could have testified on the manner in which the Respondent’s post had caused him or her to view the Appellant differently. In my view, the evidence of the Appellant’s spouse – one who knew the Appellant well – was not sufficient to prove that the WhatsApp post was defamatory.
43. In any event, the Appellant’s said witness did not state how the WhatsApp message tended to lower the Appellant in his estimation. There was also no evidence tendered to prove that the Respondent’s post exposed the Appellant to public hatred, contempt or ridicule or that it caused her to be shunned or avoided by right-thinking members of the society.
44. In order to be successful, the Appellant was also required to prove, before the trial court, that the post complained of was made with malice.
45. In her defence, the Respondent relied on the defence of fair comment stating that she did not know who the Appellant was and that her comment was made in reaction to the preceding comments in the group.
46. In the case of Phineas Nyagah (supra) the court held:
“Malice here does not necessary mean spite or ill will but recklessness itself may be evidence of malice. Evidence of malice maybe found in the publication itself if the language used is utterly beyond or disproportionate to the facts.
….malice may also be inferred from the relationship between the parties before or after the publication or in the conduct of the defendant in the course of the proceedings. Court should however be slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsely.”
47. I respectfully opine that despite the Appellant proving that the Respondent was the author of the impugned post, she failed to prove on a balance of probabilities that the said post was published with malice.
48. In the premises, I do agree with the trial Magistrate that the Appellant failed to prove the essential ingredients of defamation. The Appellant failed to demonstrate that her character, reputation and/or profession had been injured and/or lowered in the estimation of right-thinking members of the society or that the Respondent posted the message maliciously.
49. For the foregoing reasons, I reach the considered view that the learned trial Magistrate reached the correct findings that the Appellant did not prove her case to the required standard.
50. The upshot of all the above is that I find that this appeal lacks merit and I proceed to dismiss it with costs to the Respondent.
Delivered (virtually), Dated and Signed this 13th day of February, 2025.
JOE M. OMIDO
JUDGE
FOR APPELLANT: Ms. Karue for Mr. Malenya.
FOR RESPONDENT: Mr. Koyoko.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.