Background
1. In its decision of 4th April 2024, the Trial Court partially allowed the Respondent’s claim and entered judgment in her favour and awarded her Kshs 3,000,000/= as general damages for defamation plus costs and interest at the court rates.
2. Being partially aggrieved by the said decision, the Appellant herein filed a memorandum of appeal dated and filed on 14th May 2024 relying on seven (7) grounds of appeal.
3. Appellant’s written submissions are dated 26th March 2026 while those of the Respondent are dated 20th April 2026. The Judgment herein is based on the said written submissions which parties relied upon in their entirety.
Analysis of the Appeal
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. A perusal of the trial court record showed that the Respondent filed a plaint dated 22nd February 2016 whereby she claimed that Goodman Agencies Ltd contacted the Appellant to give a recommendation comment on her but the Appellant maliciously failed to recommend her which led her to be suspended for six (6) months without pay and as a result, she lost income and medical cover. She listed particulars of malice on part of the Appellant and she prayed for general damages for libel and loss of income.
6. The Appellant filed a defence statement dated 4th May 2016 and averred that it had no business with the Respondent’s next appointment after termination. It further averred that after issuing the Respondent with recommendation letter, it was under no obligation to add nor retract what it had stated in the said letter through any other mode since it was concrete and if she was suspended, it was not due to its omission. It also denied making any further remarks after the Respondent was terminated.
7. The matter proceeded for hearing and the Respondent produced her documents as exhibits and testified that she was employed by Goodman enterprise who did a background check through one Teresa Naswa who sent an email indicating that she was unable to recommend her despite her earlier recommendation. She was informed by her new employer and she wrote an email to the Appellant to clarify the issue but they failed to do so and she was suspended for two (2) weeks waiting for a response which was not forthcoming and so she was suspended for six (6) months without pay. She followed up through a demand letter.
8. She further testified that her employer took it to mean that she was a criminal and she was not retained. She stated that she had worked with the Appellant for six (6) years and when she left, there was no indication that there were any investigations going on since the termination cited redundancy. She indicated that she was not charged when she was working at Goodman but was later taken to court in 2019 and she was not found guilty hence she was acquitted. She claimed that she worked at Goodman for two (2) months before she was suspended and she stated that failure to recommend her impacted on her job and dented her job opportunities.
9. On cross examination, she testified that her contract with the Appellant ended as a result of redundancy and she was given severance pay and pension. That she was to be given two (2) weeks’ notice of termination which she did not produce in court. She also did not produce the suspension or termination letter and that she was not aware if Goodman sought clarification from the Appellant on why she was not recommended. She stated that she had not presented evidence to show that Goodman failed to retain her and she had no proof of communication between Goodman and the Appellant. She was on probation for six (6) months and the employer had the right to terminate the contract within the six (6) months.
10. On re-examination, she told the court that she lost income which she was entitled to even on probation and that the factors that made her not to be employed was the background check and failure to recommend her. She maintained that failure to recommend her resulted in loss of income, benefits and reputation.
11. The Appellant called one witness, Teresa Naswa. She testified that she was the client service manager at the Appellant’s company. She confirmed that the Respondent worked for the said company till 2015 due to redundancy. She stated that all employees were given recommendation. She claimed that in March, an audit was conducted which revealed loss of Kshs 18,000,000/= and list of four employees including the Respondent was given to DCI for investigations. Two (2) days later after the report, she received a request to recommend and they were thus unable to do so since investigations were yet to be concluded. She stated that the email was not a malicious statement as the DCI had not concluded the investigations. She told the court that DCI made a decision to charge the Respondent and another employee.
12. On cross examination, she testified that at the time the Respondent left, she had no bad record. That the Respondent worked until end of March 2015 and the fraud was brought to their attention at the end of March 2015. She stated that the Respondent was acquitted in the criminal case. She further stated that she was not sure of giving a recommendation as she had filed a police report asking the police to investigate and that the internal investigations linked the Respondent to the crime. She claimed that she did not explain to the prospective employer why they could not recommend and that she did not contact the Respondent to inform her that she had committed a felony. She testified that she was not aware whether the demand letter was responded to and that it was not mandatory to give details why she was not able to recommend and it was not malicious not to state the reason.
13. On re-examination, she testified that if one had a pay slip for January 2016 meant that that person was in employment and it meant that the Respondent was in employment. She stated that the Respondent never wrote any letter seeking clarification and there was no letter in court to confirm conversation took place. She asserted that she thought the employer ignored her letter of not recommending and employed the Respondent as was evidenced by a pay slip of 2016. She claimed that there was no legal obligation for an employer to recommend an employee. She testified that the statement was not malicious and that a malicious statement was made to discredit someone or put one down and that in her email, she did not put her down or made any accusation or referred to the Respondent’s suitability.
14. From the grounds of appeal and the respective parties’ written submissions the issues that has been placed before it for determination are as follows: -
a. Whether the tort of defamation was proved; and
b. Whether the quantum that was awarded was excessive in the circumstances warranting interference by this court.
The court deemed it prudent to address the issues under the following distinct heads.
Whether the tort of defamation was proved
Appellant’s submissions.
15. The Appellant cited Owino & 2 others vs Ogemba & 2 others [2022], where the ingredients of defamation were discussed. It pointed out that the trial court failed to distinguish in what capacity the statement was made since Teresa Naswa was the manager at the Appellant's company, and on the other hand, she was a referee on the Respondent's CV. Further, the alleged statement was not a factual allegation about the Respondent's misconduct and it did not speak to the Respondent's capability or lack of it. It faulted the trial court holding that Teresa was under an obligation to give either a negative or a positive review and stated that the trial court-imposed obligations on parties and yielded unsound decision.
16. The Appellant quoted Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 and asserted that the test for whether a statement was defamatory was objective as it was not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. It further submitted that words should be interpreted in their ordinary meaning and that the trial court failed to establish the ordinary meaning of the words ‘not able’ and it quoted the definition of the said words from Merriam Webster dictionary and the Cambridge dictionary.
17. Appellant submitted that Teresa Naswa never said "I cannot recommend," or "I will not recommend" in which case then she would be making a clear decision, instead she informed the recruiter that she was not in a position to make a recommendation and she was also clear that this was a position that could be changed by time as she finalized by stating that this was "at the moment."
18. The Appellant invoked Section 51(3) of Employment Act and argued that there was no legal obligation imposed on employers to issue reference letters singing good praise about their ex- employees. It further pointed out that Goodman Agencies Limited sought to assess the Respondent's character while criminal investigations were ongoing, and the Appellant's inability to recommend the Respondent was "at the moment", a fair comment pursuant to Section 15 of the Defamation Act and as was observed in Nation Media Group Limited & another vs Alfred N. Mutua [2017] eKLR.
19. It was their submission that the statement was not laced with malice as it was neither a direct accusation nor a claim of guilt nor did it lower the Respondent in any manner. Further, Teresa Naswa had reasonable grounds for making the comment that she did, due to the ongoing fraud investigations. It argued that if it had given a negative recommendation, the Respondent would have ground to establish malice. It asserted that the response by Teresa Naswa did not raise any doubts on the character of the Respondent or her performance and therefore, there was no case of express malice.
20. It submitted that malice must be established for the tort of defamation to stand and it cited Phineas Nyagah vs Gilbert Imanyara [2013] eKLR among other cases.
21. On whether the Appellant's remarks cost the Respondent her income, it argued that the recommendation comments were requested approximately 3 months from the date that the alleged employment contract was issued to the Respondent, which was enough time to assess an employee's suitability for a job. It pointed out that the Respondent failed to produce suspension letter and termination letter to show that she lost her job after Teresa’s remarks. Further, she failed to prove that she was reinstated after she cleared her name and failed to establish what was needed to be cleared which demonstrated that she suffered no economic or professional loss as per the pay slip, she produced dated 16th January 2016 which showed that she was in continuous employment even after the lack of recommendation which contradicted her claim of job loss.
22. The Appellant argued that qualified privilege given to employers allowed them to share in good faith, information on a subject in which they have a duty or interest and this privilege was only lost when the statement was made in malice and there was no malice in this case. It was emphatic that it ensured that no accusations were laid on the Respondent as her employer was never made aware of the fraud investigation and that it did not initiate the said conversation thus ousting the possibility of malice. It was further emphatic that due to the qualified privilege; it had all reason to disclose to the prospective employer the reason behind the ongoing investigations, but out of caution, it gave a neutral response.
Respondent’s submission.
23. On her part, the Respondent placed reliance on J. Kudwoli vs Eureka Educational and Teaching Consultants & 2 Others HCC NO. 126 OF 1990, W veliffe A. Swanya vs Toyota East Africa Limited and Francis Massai Nairobi Ca No. 70 Of 2008 among other cases where it was discussed on what the Plaintiff was needed to proof in a suit founded on defamation. She submitted that the defamatory email was published by the Appellant to a third party and the said defamatory email was produced and tendered in evidence therefore her claim for libel was established. Further, she testified that her new employer took this to mean she was a criminal and did not retain her and this is evidence enough. She further submitted that it was not disputed that the email referred to her as Ms. Teresa acknowledged that she was responding to Goodman agencies who wanted a recommendation for the Respondent.
24. As to whether the publication was defamatory, she cited Phinehas Nyagah v Gitobu Imanyara and submitted that the email that ‘I cannot recommend her’ meant or implied that she was incompetent, she lacked integrity, and she was unsuitable for employment which was enough to show that it was defamatory.
25. On whether it was published maliciously, she placed reliance on Phinehas Nyagah vs Gitobu Imanyara(sic) and argued that the publication was actuated by malice and the defense of qualified privilege was not available to the Appellant. She argued that malice was proved since the Appellant had issued a positive recommendation letter upon redundancy but later on stated that she "cannot recommend" and the inconsistency showed malice; she was suspended and given 2 weeks to clarify from the previous employer what the content of their email meant but it did not; she wrote an email to the Appellant on 25th August 2015 asking it to confirm her true status of character while at their company as she had 2 weeks to clear her name but the Appellant remained adamant and did not respond; the Appellant also ignored her demand letter; the Appellant through Teresa had a telephone conversation with the Respondent's new employer; the Appellant said could not recommend but failed to clarify that investigations were ongoing, that she left with a clean record and earlier recommendation had been issued since she was a good employee. She was emphatic that withholding material facts was evidence of malice.
26. The Respondent further pointed out that malice was proved through premature conclusion by the former employer when investigations were yet to be concluded; lack of knowledge of ongoing investigations; suppression of material facts as the Appellant failed to inform her new employer that she was unaware of any allegations and that no disciplinary finding had been made; she was subsequently acquitted of the criminal charges which showed that the Appellant acted prematurely and recklessly in communicating adverse information as though it were an established fact; acting recklessly and without due regard to the truth or fairness, in circumstances where it was foreseeable that the communication would result in the loss of employment; abusing the occasion of qualified privilege by presenting unverified suspicion as a basis for adverse recommendation.
27. It is her submission that the email influenced the employer's perception of her since she was called upon to clarify issue arising from the email and she was placed under scrutiny based on the contents of the communication which demonstrated that it lowered her standing in the eyes of her employer and her professional integrity was brought into question and based on this, she was terminated from employment which established actual damage to reputation and loss of employment as a direct consequence of the publication and she cited Fraed v. Graham, 24 QBD 53, 55 and Phineas Nyagah v. Gitobu Imanyara (2013) eKLR.
Findings.
28. Having analyzed the record of appeal this Court must now establish if the Tort of defamation was proved or not. The statement complained of says “I am however not able to recommend our former employee at the moment”. In my view the submission by the Appellant that the statement is too vague to meet the Respondent’s implied defamation is not accurate. This statement must be looked at and the circumstances under which it was made evaluated. This information was given to an employer. What would an employer seeking background check from another employer do after receiving such an email? Is that positive or negative feedback? It is my considered view that the said statement was indeed defamatory as it would lower the Respondent in the estimation of right-thinking members of the society in this case an employer.
29. Looking at the statement herein, it is evident that it has met the elements of defamation as follows: the statement herein being given to a new employer lowered the estimation of the Respondent. secondly the publication pointed to the Respondent no doubt, thirdly the publication was to a third party. It was the Respondent’s evidence that after the new employer received the email, she was informed of the same and made efforts to clear her name from the Appellant which but the Appellant did not cooperate.
30. I am satisfied by finding of the Trial Court that the ingredients of the tort of defamation were met. I affirm the finding based on the above analysis.
Whether the quantum awarded was excessive in the circumstances warranting interference by this court.
Parties’ submissions
31. The Appellant submitted that the damages of Kshs 3,000,000/= were unjustified and excessive. It asserted that disproportionate awards placed the Court in direct conflict with Article 33 of the Constitution and it cited Matumbi vs Tanui [2026] KECA 253 (KLR). It pointed out that based on the above case, it was important to note that the email was only published to the HR, it was never shared with the public or other members of the Respondent’s organization and the Respondent was not even put in copy. Secondly, the Respondent failed to prove that she had suffered damage, lost her job, or suffered a reputation loss as a result of the publication. It was therefore emphatic that the circumstances of this case did not warrant such a hefty award and instead of compensating the Respondent, the court ended up awarding her, which is not the mandate of the court.
32. In rejoinder, the Respondent submitted that the principles governing the award of damages in libel cases were discussed in the Biwott v. Clays (2000) 2 EA 334. She cited Johnson Evan Gicheru vs Andrew Morton where Kshs 6,000,000/= was awarded where the offending publication was in a book with international coverage. She also cited Young v. Toronto Star Ltd et al. (2005) Court of Appeal of Ontario at pp. 27-28, para 108 and argued that she wrote an email dated 25th August 2015 to the Appellant giving it opportunity to clarify information to the new employer but it did not. She further wrote a demand to the Appellant on 11th September 2018 requiring clarification and the Appellant chose to still not clarify the email. She was emphatic that award of Kshs 3,000,000/- was therefore sufficient.
Findings
33. From the above analysis of the evidence at the Trial Court, I am satisfied that the email done and the wordings used met the established ingredients of defamation.
34. The above being my finding, I must decide if the amount awarded by the Trial was excessive. Looking at the totality of the case it is my finding that indeed the award of the Trial Court was excessive in lieu of the evidence placed before it and I hereby reduce the same to Kshs.1,500,000.00, it is my finding this amount is proportionate to the circumstances of this case, specifically being that email’s publication was to the prospective employer, no evidence has been placed before Court to prove that the email entered public domain. My finding is supported by Court of Appeal in [2026] KECA 253 (KLR)
“We are also mindful that while the respondent experienced distress and career disruption, the evidence shows that he continued his professional career in the banking sector. The evidence did not establish permanent professional ruin or complete loss of livelihood. In these circumstances, while a substantial award of general damages was justified to vindicate reputation and compensate for distress, the award of Kshs 6,000,000 fell outside the range of proportionate and comparable awards for cases involving limited publication”
Final Orders.
35. The award of Kshs.3,000,000.00 is set aside and replaced with an award of Kshs.1,500,00.00
36. The Appeal having partially succeeded, each party shall bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 18th day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Watiri h/b for James Njeri for the Appellant.
Mumbi h/b for Morara for the Respondent
Michael – Court Assistant.
1. In its decision of 4th April 2024, the Trial Court partially allowed the Respondent’s claim and entered judgment in her favour and awarded her Kshs 3,000,000/= as general damages for defamation plus costs and interest at the court rates.
2. Being partially aggrieved by the said decision, the Appellant herein filed a memorandum of appeal dated and filed on 14th May 2024 relying on seven (7) grounds of appeal.
3. Appellant’s written submissions are dated 26th March 2026 while those of the Respondent are dated 20th April 2026. The Judgment herein is based on the said written submissions which parties relied upon in their entirety.
Analysis of the Appeal
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
5. A perusal of the trial court record showed that the Respondent filed a plaint dated 22nd February 2016 whereby she claimed that Goodman Agencies Ltd contacted the Appellant to give a recommendation comment on her but the Appellant maliciously failed to recommend her which led her to be suspended for six (6) months without pay and as a result, she lost income and medical cover. She listed particulars of malice on part of the Appellant and she prayed for general damages for libel and loss of income.
6. The Appellant filed a defence statement dated 4th May 2016 and averred that it had no business with the Respondent’s next appointment after termination. It further averred that after issuing the Respondent with recommendation letter, it was under no obligation to add nor retract what it had stated in the said letter through any other mode since it was concrete and if she was suspended, it was not due to its omission. It also denied making any further remarks after the Respondent was terminated.
7. The matter proceeded for hearing and the Respondent produced her documents as exhibits and testified that she was employed by Goodman enterprise who did a background check through one Teresa Naswa who sent an email indicating that she was unable to recommend her despite her earlier recommendation. She was informed by her new employer and she wrote an email to the Appellant to clarify the issue but they failed to do so and she was suspended for two (2) weeks waiting for a response which was not forthcoming and so she was suspended for six (6) months without pay. She followed up through a demand letter.
8. She further testified that her employer took it to mean that she was a criminal and she was not retained. She stated that she had worked with the Appellant for six (6) years and when she left, there was no indication that there were any investigations going on since the termination cited redundancy. She indicated that she was not charged when she was working at Goodman but was later taken to court in 2019 and she was not found guilty hence she was acquitted. She claimed that she worked at Goodman for two (2) months before she was suspended and she stated that failure to recommend her impacted on her job and dented her job opportunities.
9. On cross examination, she testified that her contract with the Appellant ended as a result of redundancy and she was given severance pay and pension. That she was to be given two (2) weeks’ notice of termination which she did not produce in court. She also did not produce the suspension or termination letter and that she was not aware if Goodman sought clarification from the Appellant on why she was not recommended. She stated that she had not presented evidence to show that Goodman failed to retain her and she had no proof of communication between Goodman and the Appellant. She was on probation for six (6) months and the employer had the right to terminate the contract within the six (6) months.
10. On re-examination, she told the court that she lost income which she was entitled to even on probation and that the factors that made her not to be employed was the background check and failure to recommend her. She maintained that failure to recommend her resulted in loss of income, benefits and reputation.
11. The Appellant called one witness, Teresa Naswa. She testified that she was the client service manager at the Appellant’s company. She confirmed that the Respondent worked for the said company till 2015 due to redundancy. She stated that all employees were given recommendation. She claimed that in March, an audit was conducted which revealed loss of Kshs 18,000,000/= and list of four employees including the Respondent was given to DCI for investigations. Two (2) days later after the report, she received a request to recommend and they were thus unable to do so since investigations were yet to be concluded. She stated that the email was not a malicious statement as the DCI had not concluded the investigations. She told the court that DCI made a decision to charge the Respondent and another employee.
12. On cross examination, she testified that at the time the Respondent left, she had no bad record. That the Respondent worked until end of March 2015 and the fraud was brought to their attention at the end of March 2015. She stated that the Respondent was acquitted in the criminal case. She further stated that she was not sure of giving a recommendation as she had filed a police report asking the police to investigate and that the internal investigations linked the Respondent to the crime. She claimed that she did not explain to the prospective employer why they could not recommend and that she did not contact the Respondent to inform her that she had committed a felony. She testified that she was not aware whether the demand letter was responded to and that it was not mandatory to give details why she was not able to recommend and it was not malicious not to state the reason.
13. On re-examination, she testified that if one had a pay slip for January 2016 meant that that person was in employment and it meant that the Respondent was in employment. She stated that the Respondent never wrote any letter seeking clarification and there was no letter in court to confirm conversation took place. She asserted that she thought the employer ignored her letter of not recommending and employed the Respondent as was evidenced by a pay slip of 2016. She claimed that there was no legal obligation for an employer to recommend an employee. She testified that the statement was not malicious and that a malicious statement was made to discredit someone or put one down and that in her email, she did not put her down or made any accusation or referred to the Respondent’s suitability.
14. From the grounds of appeal and the respective parties’ written submissions the issues that has been placed before it for determination are as follows: -
a. Whether the tort of defamation was proved; and
b. Whether the quantum that was awarded was excessive in the circumstances warranting interference by this court.
The court deemed it prudent to address the issues under the following distinct heads.
Whether the tort of defamation was proved
Appellant’s submissions.
15. The Appellant cited Owino & 2 others vs Ogemba & 2 others [2022], where the ingredients of defamation were discussed. It pointed out that the trial court failed to distinguish in what capacity the statement was made since Teresa Naswa was the manager at the Appellant's company, and on the other hand, she was a referee on the Respondent's CV. Further, the alleged statement was not a factual allegation about the Respondent's misconduct and it did not speak to the Respondent's capability or lack of it. It faulted the trial court holding that Teresa was under an obligation to give either a negative or a positive review and stated that the trial court-imposed obligations on parties and yielded unsound decision.
16. The Appellant quoted Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 and asserted that the test for whether a statement was defamatory was objective as it was not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. It further submitted that words should be interpreted in their ordinary meaning and that the trial court failed to establish the ordinary meaning of the words ‘not able’ and it quoted the definition of the said words from Merriam Webster dictionary and the Cambridge dictionary.
17. Appellant submitted that Teresa Naswa never said "I cannot recommend," or "I will not recommend" in which case then she would be making a clear decision, instead she informed the recruiter that she was not in a position to make a recommendation and she was also clear that this was a position that could be changed by time as she finalized by stating that this was "at the moment."
18. The Appellant invoked Section 51(3) of Employment Act and argued that there was no legal obligation imposed on employers to issue reference letters singing good praise about their ex- employees. It further pointed out that Goodman Agencies Limited sought to assess the Respondent's character while criminal investigations were ongoing, and the Appellant's inability to recommend the Respondent was "at the moment", a fair comment pursuant to Section 15 of the Defamation Act and as was observed in Nation Media Group Limited & another vs Alfred N. Mutua [2017] eKLR.
19. It was their submission that the statement was not laced with malice as it was neither a direct accusation nor a claim of guilt nor did it lower the Respondent in any manner. Further, Teresa Naswa had reasonable grounds for making the comment that she did, due to the ongoing fraud investigations. It argued that if it had given a negative recommendation, the Respondent would have ground to establish malice. It asserted that the response by Teresa Naswa did not raise any doubts on the character of the Respondent or her performance and therefore, there was no case of express malice.
20. It submitted that malice must be established for the tort of defamation to stand and it cited Phineas Nyagah vs Gilbert Imanyara [2013] eKLR among other cases.
21. On whether the Appellant's remarks cost the Respondent her income, it argued that the recommendation comments were requested approximately 3 months from the date that the alleged employment contract was issued to the Respondent, which was enough time to assess an employee's suitability for a job. It pointed out that the Respondent failed to produce suspension letter and termination letter to show that she lost her job after Teresa’s remarks. Further, she failed to prove that she was reinstated after she cleared her name and failed to establish what was needed to be cleared which demonstrated that she suffered no economic or professional loss as per the pay slip, she produced dated 16th January 2016 which showed that she was in continuous employment even after the lack of recommendation which contradicted her claim of job loss.
22. The Appellant argued that qualified privilege given to employers allowed them to share in good faith, information on a subject in which they have a duty or interest and this privilege was only lost when the statement was made in malice and there was no malice in this case. It was emphatic that it ensured that no accusations were laid on the Respondent as her employer was never made aware of the fraud investigation and that it did not initiate the said conversation thus ousting the possibility of malice. It was further emphatic that due to the qualified privilege; it had all reason to disclose to the prospective employer the reason behind the ongoing investigations, but out of caution, it gave a neutral response.
Respondent’s submission.
23. On her part, the Respondent placed reliance on J. Kudwoli vs Eureka Educational and Teaching Consultants & 2 Others HCC NO. 126 OF 1990, W veliffe A. Swanya vs Toyota East Africa Limited and Francis Massai Nairobi Ca No. 70 Of 2008 among other cases where it was discussed on what the Plaintiff was needed to proof in a suit founded on defamation. She submitted that the defamatory email was published by the Appellant to a third party and the said defamatory email was produced and tendered in evidence therefore her claim for libel was established. Further, she testified that her new employer took this to mean she was a criminal and did not retain her and this is evidence enough. She further submitted that it was not disputed that the email referred to her as Ms. Teresa acknowledged that she was responding to Goodman agencies who wanted a recommendation for the Respondent.
24. As to whether the publication was defamatory, she cited Phinehas Nyagah v Gitobu Imanyara and submitted that the email that ‘I cannot recommend her’ meant or implied that she was incompetent, she lacked integrity, and she was unsuitable for employment which was enough to show that it was defamatory.
25. On whether it was published maliciously, she placed reliance on Phinehas Nyagah vs Gitobu Imanyara(sic) and argued that the publication was actuated by malice and the defense of qualified privilege was not available to the Appellant. She argued that malice was proved since the Appellant had issued a positive recommendation letter upon redundancy but later on stated that she "cannot recommend" and the inconsistency showed malice; she was suspended and given 2 weeks to clarify from the previous employer what the content of their email meant but it did not; she wrote an email to the Appellant on 25th August 2015 asking it to confirm her true status of character while at their company as she had 2 weeks to clear her name but the Appellant remained adamant and did not respond; the Appellant also ignored her demand letter; the Appellant through Teresa had a telephone conversation with the Respondent's new employer; the Appellant said could not recommend but failed to clarify that investigations were ongoing, that she left with a clean record and earlier recommendation had been issued since she was a good employee. She was emphatic that withholding material facts was evidence of malice.
26. The Respondent further pointed out that malice was proved through premature conclusion by the former employer when investigations were yet to be concluded; lack of knowledge of ongoing investigations; suppression of material facts as the Appellant failed to inform her new employer that she was unaware of any allegations and that no disciplinary finding had been made; she was subsequently acquitted of the criminal charges which showed that the Appellant acted prematurely and recklessly in communicating adverse information as though it were an established fact; acting recklessly and without due regard to the truth or fairness, in circumstances where it was foreseeable that the communication would result in the loss of employment; abusing the occasion of qualified privilege by presenting unverified suspicion as a basis for adverse recommendation.
27. It is her submission that the email influenced the employer's perception of her since she was called upon to clarify issue arising from the email and she was placed under scrutiny based on the contents of the communication which demonstrated that it lowered her standing in the eyes of her employer and her professional integrity was brought into question and based on this, she was terminated from employment which established actual damage to reputation and loss of employment as a direct consequence of the publication and she cited Fraed v. Graham, 24 QBD 53, 55 and Phineas Nyagah v. Gitobu Imanyara (2013) eKLR.
Findings.
28. Having analyzed the record of appeal this Court must now establish if the Tort of defamation was proved or not. The statement complained of says “I am however not able to recommend our former employee at the moment”. In my view the submission by the Appellant that the statement is too vague to meet the Respondent’s implied defamation is not accurate. This statement must be looked at and the circumstances under which it was made evaluated. This information was given to an employer. What would an employer seeking background check from another employer do after receiving such an email? Is that positive or negative feedback? It is my considered view that the said statement was indeed defamatory as it would lower the Respondent in the estimation of right-thinking members of the society in this case an employer.
29. Looking at the statement herein, it is evident that it has met the elements of defamation as follows: the statement herein being given to a new employer lowered the estimation of the Respondent. secondly the publication pointed to the Respondent no doubt, thirdly the publication was to a third party. It was the Respondent’s evidence that after the new employer received the email, she was informed of the same and made efforts to clear her name from the Appellant which but the Appellant did not cooperate.
30. I am satisfied by finding of the Trial Court that the ingredients of the tort of defamation were met. I affirm the finding based on the above analysis.
Whether the quantum awarded was excessive in the circumstances warranting interference by this court.
Parties’ submissions
31. The Appellant submitted that the damages of Kshs 3,000,000/= were unjustified and excessive. It asserted that disproportionate awards placed the Court in direct conflict with Article 33 of the Constitution and it cited Matumbi vs Tanui [2026] KECA 253 (KLR). It pointed out that based on the above case, it was important to note that the email was only published to the HR, it was never shared with the public or other members of the Respondent’s organization and the Respondent was not even put in copy. Secondly, the Respondent failed to prove that she had suffered damage, lost her job, or suffered a reputation loss as a result of the publication. It was therefore emphatic that the circumstances of this case did not warrant such a hefty award and instead of compensating the Respondent, the court ended up awarding her, which is not the mandate of the court.
32. In rejoinder, the Respondent submitted that the principles governing the award of damages in libel cases were discussed in the Biwott v. Clays (2000) 2 EA 334. She cited Johnson Evan Gicheru vs Andrew Morton where Kshs 6,000,000/= was awarded where the offending publication was in a book with international coverage. She also cited Young v. Toronto Star Ltd et al. (2005) Court of Appeal of Ontario at pp. 27-28, para 108 and argued that she wrote an email dated 25th August 2015 to the Appellant giving it opportunity to clarify information to the new employer but it did not. She further wrote a demand to the Appellant on 11th September 2018 requiring clarification and the Appellant chose to still not clarify the email. She was emphatic that award of Kshs 3,000,000/- was therefore sufficient.
Findings
33. From the above analysis of the evidence at the Trial Court, I am satisfied that the email done and the wordings used met the established ingredients of defamation.
34. The above being my finding, I must decide if the amount awarded by the Trial was excessive. Looking at the totality of the case it is my finding that indeed the award of the Trial Court was excessive in lieu of the evidence placed before it and I hereby reduce the same to Kshs.1,500,000.00, it is my finding this amount is proportionate to the circumstances of this case, specifically being that email’s publication was to the prospective employer, no evidence has been placed before Court to prove that the email entered public domain. My finding is supported by Court of Appeal in [2026] KECA 253 (KLR)
“We are also mindful that while the respondent experienced distress and career disruption, the evidence shows that he continued his professional career in the banking sector. The evidence did not establish permanent professional ruin or complete loss of livelihood. In these circumstances, while a substantial award of general damages was justified to vindicate reputation and compensate for distress, the award of Kshs 6,000,000 fell outside the range of proportionate and comparable awards for cases involving limited publication”
Final Orders.
35. The award of Kshs.3,000,000.00 is set aside and replaced with an award of Kshs.1,500,00.00
36. The Appeal having partially succeeded, each party shall bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 18th day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Watiri h/b for James Njeri for the Appellant.
Mumbi h/b for Morara for the Respondent
Michael – Court Assistant.