1. The appeal that is before this court for determination is predicated on the memorandum of appeal dated 10th September 2024 wherein the Appellant seeks to challenge the judgment that was delivered on 15th August 2024 by the trial court.
2. The appellant is asking this court for prayers that;
1) The Appeal be allowed with costs.
2) The judgement be set aside and substituted with an order allowing the prayers as per the Plaint.
3) The Honourable Court do assess and award general and exemplary damages to the Appellant.
The Appellants case.
3. It is his case that The Respondent driven by malice and bad faith and with support of his former Supervisor wrote emails to the Insurance Regulatory Authority (IRA) and the Appellant's new employer, Britam.
4. As a result the Appellant contract with Britam was suspended pending the outcome of the investigations by Insurance Regulatory Authority (IRA).
5. The Complainant was found to be unfounded, malicious and dismissed by Insurance Regulatory Authority (I.R.A).
6. The Respondent escalated the attacks on Facebook page "Buyer BewareKenya (ORIGINAL)"where she described the Appellant as a "merciless cold calculated thief'. She concluded by stating "kindly avoid him like a plague please. ”This prompted the filing of the suit in the magistrates court.
7. He submits that during Cross-examination, he told Court that for the Respondent to justify her action, she forged documents to prove her allegations that the Appellant replaced the name of her daughter as beneficiary.
8. He further submits that The Respondent in her testimony said that the Appellant's former boss Philip Githaiga told her that the Appellant had replaced the daughter's name as beneficiary with his own daughter and that a number of young ladies had complaints against the Appellant.
9. He advised her to call Britam and give her story to the new Appellant's employer.
10. He further submits that she confirmed posting about the Appellant on buyer beware Facebook page but deleted the post after 2 weeks because people were disturbing her in her inbox.
11. He submits that during Cross-examination, she could not explain the inconsistencies on the amount claimed to have lost. She said she did not have evidence that the Appellant had stolen from other ladies. She admitted that the Mpesa statement relied on to show she sent money to the Appellant did not come from Safaricom. She said that she relied on what the Appellant's former boss told her.
12. It is his case that the Trial Court got the facts right but erred in his analysis of facts and the law hence prompting this appeal. The Appellant raised 8 grounds of appeal namely;
1) FIRST, the Trial Court wrote on paragraph 38 of the Judgement
a. "As mentioned earlier, one LETICIA NANJORA was listed as a beneficiary in at least one policy belonging to the Defendant. Even on this Court alone, the Defendant had a sufficient right to seek audience with the commissioner of insurance to seek remedy for the wrongs perpetrated against her."
2) The Trial Court got it all wrong here. The issue is not seeking audience with the commissioner of insurance but on the basis of false allegation.
3) The information that Leticia Nanjora was the daughter of the Appellant was hearsay. The Respondent said that she was told by a third party who was not even called to testify. No evidence was produced from even the Appellant's former employer to prove that the said Leticia was his daughter and/or beneficiary.
4) The only document which was produced by the Defendant on this issue is Policy No. 027/VAT/044194 (See Page 67). It commences on 27th September 2010 and beneficiaries are listed as Joyce Wambui Gitonga, Tatyana Wambui And Leticia Nainjora. The Insured Is Susan Waithera Gitonga.
5) The Appellant produced a document Policy No. 027/CEA/098910 (See page 50). The policy holder is CLAIRE NANGILA SIMIYU. Beneficiaries Are METICIA NAINJORA (Daughter) And FRANCIS MITUNGO (Husband). The policy commenced on 28 th February 2016.
6) The Appellant's position is that the policy produced by the Respondent is forged and edited in order to justify her malicious action against the Appellant, The policy commenced on 27 th September 2010 and TATYANA WAMBUI, the Respondent's daughter is listed as a beneficiary.
7) However on page 13 of the Record of Appeal paragraph 6, the Respondent writes to the commissioner of Insurance on October 27, 2017;
a. "In April 2015, I was blessed with a daughter, Tatyana Wambui, and I opened an education policy for her in ICEA with his guidance. "
8) If the daughter was born in 2015 and the policy was taken in 2010, it means the policy started before Tatyana was born. How did the Respondent knovv that in 5 years time she would give birth to a baby girl and name her Tatyana. It therefore follows that the document produced by the Respondent as a policy from ICEA is forged and if the trial Court relied on it, then the Court reached an erroneous finding.
9) The Trial Court in paragraph 38 of the judgement (see page 118) relied on the fact that Leticia Nanjorawas listed as a beneficiary and on that account alone the Respondent had a right to seek redress.
10) He submits that the Trial Court erred in arriving at such conclusion.
11) Even if the court were to assume that the said policy had accurate information, there was no evidence tendered that the name Leticia was added as a beneficiary by the Appellant. The document was not found in his possession. There was no basis to conclude that it is the Appellant who aclclecl the narnc and that Leticia was his daughter, even after producing a policy showing the parents of Leticia.
12) SECONDLY; it is on January 2017 per page 41 of the Record of Appeal and moved to Britam, a competitor of his former employer. Following the resignation, ICEA put up a notice on the Daily Nation News of 14th February 2017 notifying the general public that the Appellant was no longer their agent and therefore not authorized to transact on their behalf. The email to IRA Commissioner is dated October 27, 2017.
13) The Respondent stated in her evidence in Chief at page 110, paragraph 7 states;
a. "Philip Gitonga "read Githaiga" told me that I am not the first one who has complained that I should call Britam to give my story. "
13. It is his case that the court in its judgment dismissed the suit with costs precipitating the filing of the appeal that is before the court for determination.
14. It is his case that the malice on the part of the Respondent is demonstrated by the fact that even after reporting to the concerned authorities, she still launched a social media Campaign and even took time to visit the Appellant's.
15. Reliance is placed in the case of In the case of John Ward -Vs- Standard Limited (2006) eKLR, they observed that;
"a statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt of which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. "
16. It is his case that the Respondent described him in her social media post as merciless, cold and calculative thief. She pleaded with the public to avoid him like plague. The Buyer beware had the largest following at the time. It is clear that her intention was to injure the profession of the Appellant.
17. In Nation Media Group Ltd & 2 Others -Vs- John Joseph Kamotho & 3 Others (2019) eKLR, the Appellate court held that;
"obviously, reputation is an integral and important party of dignity of an individual and once besmirched by an unfounded allegation a reputation can be damaged forever especially if there is no opportunity to vindicate one's reputation".
18. Article 28 of the Constitution of Kenya states that;
"every person has inherent dignity and the right to have that dignity respected and protected. "
19. Reliance is also placed in the case of in the case of Uren -Vs- John Fairfax & Sons Pty, 117 CLR 115, 150, Windeyer J held that;
"it seems to me through properly speaking, a man defamed does not get compensation for his damaged reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. "
The Respondents case:
20. The Respondent’s case is that she engaged the Appellant as her insurance agent at ICEA Lion Assurance Co. Ltd between 2012 and 2017.
21. It is her case that during this period, the Appellant fraudulently diverted Kshs. 115,000.00 meant for the Respondent's insurance premiums, as corroborated by bank records and her police report (0B/ 45/2/2/2017).
22. She argues further that the appellant unlawfully added "Leticia Nanjora" —allegedly his daughter — as a beneficiary to the Respondent's policy without her knowledge or consent.
23. Upon discovering these irregularities in December 2016, the Respondent argued that she reported the matter to ICEA's management.
24. Their investigation revealed a pattern of similar complaints against the Appellant, leading to his forced resignation and a public notice in the Daily Nation (14/02/2017) disavowing his association with ICEA according to her.
25. The Appellant subsequently joined Britam Insurance, where his employment was terminated after further complaints, including one from the Respondent to the IRA (27/10/2017) according to her.
26. It is her case that in October 2017, the Respondent encountered a Facebook page ("Buyer Beware Kenya") where multiple women accused the Appellant of misconduct.
27. She argues that she shared her experience to alert the public, but deleted the post within two weeks due to overwhelming messages from members of the public.The Appellant, instead of addressing the fraud claims, sued for defamation.
Analysis and determination;
28. This court has looked at the record of appeal,the memorandum of appeal, the judgment, the rival submissions, and come to the conclusion that the following are the issues for determination;
1) Whether or not that appeal has merit.
2) Who shall be the cost.
Whether or not that appeal has merit.
29. While sitting on appeal and in reviewing the case and the evidence this court is guided by principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where it was held thus"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
30. The appellant pleaded as follows in the plaint, That in a n e m a i l d a t e d O c t o b e r 27th, 2 0 1 7 from t h e D e f e n da n t to the Commissioner of Insurance entitled "swindled by icea agent julius kibera and icea's failure to make it right", the Defendant wrote and published the following words in reference to the Plaintiff;
"I was swindled by ICEA Lion Itd Agent Julius Kibera.
"on viewing the statement, Kibera had failed to submit premium at times, like the whole of 2014, yet I had been sending him mpesa without fail since 2012".
I also discovered that he had added another next of kin to my policy, in addition to my mother, called Leticia Nainjora who was listed as my . . . . daughter. On reporting to his boss, Philip Githaiga, he told me Leticia was Kibera's daughter. It was apparent Kibera in a cold hearted way intended to cash in on my death, God forbid".
31. The Defendant further posted and/or caused to be published the following words of and concerning the Plaintiff in a social website known a s Buyer Beware Kenya (ORIGINAL);
"Julius Kibera Gituro is a merciless, cold, calculated thief who preys on ladies and men, especially single mothers. He was my insurance agent and I have known him for almost 20 years, though he was a great friend a n d trusted him hugely. Little did I know he was heartlessly taking advantage of my trust. Now I am paying for my mistake. I found out this year he had put his own next of kin in my ICEA life insurance policy called Leticia Nainjora labeled as my - daughter without my knowledge................. The cold hearted thief h a d been pocketing my money..... The level of trust I had for this heartless thief was great. I was thus very shocked to find out when I received my statement that he had only put 100,000/= into the Growth Fund Account and pocketed 115,000/=. My calls to him went unanswered and when I went to ICEA to report him that is where I discovered of the further robberies he had done to me through the arrears in my policies and the fake next of kin in my life insurance policy. This was a cold hearted bastard who was planning to cash in on my death, God forbid. Kindly avoid him like - -a plague please.....
32. The Appellant argued that the email and the post by the Defendant concerning the Plaintiff were false, malicious defamatory and in their natural and ordinary meaning as published meant that;
(a) The Plaintiff is untrustworthy, immoral and dishonest person.
(b) The Plaintiff is a criminal, corrupt and a fraudster.
33. As a consequence of the said mail and post published by the Defendant, the Plaintiff's reputation damaged and the Plaintiff suffered considerable distress and embarrassment, lost his job and Clientele.
34. In the case of John Ward -Vs- Standard Limited (2006) eKLR, the court observed that;
"a statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt of which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. "
35. The court has taken note of the Respondent’s case to the effect that in October 2017, she encountered a Facebook page ("Buyer Beware Kenya") where multiple women accused the Appellant of misconduct.
36. She admits that she shared her experience to alert the public, but deleted the post within two weeks due to overwhelming messages from members of the public.
37. In order to succeed in a claim for defamation, the plaintiff must prove that:
(a) The publication complained of by the plaintiff was defamatory;
(b) The publications referred to the plaintiff;
(c) The words in the publication were published; and
(d) The statement was malicious.
38. In Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR the court explained malice as follows:
“Malicious here does not necessarily mean spite or ill will but there must be evidence of malice and lack of justifiable cause to utter the words complained of. Evidence showing the defendant knew the words complained of were false or did not care to verify can be evidence of malice”
39. Under Section 107 of the Evidence Act the burden of proof lies on he who asserts the existence of a fact. The burden of proving that a statement is defamatory therefore lays on the plaintiff.
40. The Appellant ought to show that the words used were defamatory in that they lowered the his reputation in the estimation of right-minded persons in the society. The words complained of must be shown to have injured the reputation, character or dignity of the Appellant.
41. The burden of proof shifts to a defendant to prove any of the principal defences in defamation by virtue of section 107 of the Evidence Act in line with the phrase “he who alleges must prove”. The defendant must prove that the defamatory statement is substantially true for the defence of justification.
42. A defamatory statement is presumed to be false, unless the defendant can prove its truth. In the instant case the Respondent did not prove any justifiable cause that led her to utter the words complained of.
43. In an attempt to justify the posts on social media, it is the respondents case that in October 2017, encountered a Facebook page ("Buyer Beware Kenya") where multiple women accused the Appellant of misconduct.
44. According to her,she shared her experience to alert the public, but deleted the post within two weeks due to overwhelming messages from members of the public.
45. The fact that she decided to share her experience so as to alert the public was reckless and prejudicial to the appellant.
46. The fact that she waited for two weeks before deleting the content shows that she had the capacity to reason and even apply reason in what she was doing.She must have gone through a deliberate premeditation before deciding to delete the post. She deleted the post on her own volition after it had irredeemably caused the Appellant a lot of damage.
47. The fact that she says she deleted the post due to overwhelming messages that she received from members of the public is a clear demonstration of how much damage the post had caused on the appellant’s image.
48. The foregoing cannot amount to a The defence of justification as set out in Section 14 of the Defamation Act.
49. Justification is the assertion that the words published are true in substance and in fact. Failure to justify the defamatory words will exposed the Respondent to aggravated damages. The Respondent did not establish the truth of the post.
50. The court also notes that the IRA and the Appellant's employer had dismissed the allegations as baseless. The Respondent ignored this.
51. The court finds that the Respondent defamed the Appellant.
52. In assessing the damages to award the appellant the court has looked at the plaint and what the Appellant pleaded.
53. The Plaintiff relies on the following facts in support of his suit for damages against the Defendant;
(a) That the Plaintiff is a reputed long standing Insurance Agent registered by Insurance Regulatory Authority.
(b) That the Defendant should have verified the information before labeling the accusations and going public.
(c) That the Plaintiff demanded an apology and retraction of the defamator accusations but the Defendant refused.
(d) That the Plaintiff suffered serious material, financial loss and dented reputation.
54. In the case of Daniel Musinga (then advocate, now Court of Appeal Judge) v Nation Newspapers Limited (2005) eKLR – Kshs. 4 million.
55. In James Okoth Omburah (advocate) v Standard Media Group & Others (2013) eKLR – Kshs. 4.5 million.
56. In Ambassador Chirau Ali Makwere v Royal Media Services (20130 eKLR– Kshs. 6 million.
57. The court has from the employment status been able to assess that the appellant is entitled to Kshs. 400,000 general damages so hold.
Costs;
58. In determining the issue of costs this court is guided by the principles as enunciated in the cases of Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No 66 of 2009; [2012] eKLR; and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR); and Kuloba, R., (Ed) (2011) Judicial Hints on Civil Procedure Nairobi: Law Africa 2nd Edn p 94.
6. Mackay, JPH., (Baron of Clashfern) (Ed) (1991) Halsbury’s Laws of England London: LexisNexis Butterworths 4th Edn Re-Issue Vol 10 para 16 is instructive on the Court’s discretion on costs in general, where it was stated that “ the Court has discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially, it must not be exercised arbitrarily but in accordance with reason and justice. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different.
59. The appellant is entitled to costs.
Determination;
60. The appeal has merit.
Order:
1. The Appeal is allowed in the following terms.
2. The judgement is hereby set aside.
3. The appellant shall get Kshs.400,000 as general damages.
4.Costs to the appellant.
2. The appellant is asking this court for prayers that;
1) The Appeal be allowed with costs.
2) The judgement be set aside and substituted with an order allowing the prayers as per the Plaint.
3) The Honourable Court do assess and award general and exemplary damages to the Appellant.
The Appellants case.
3. It is his case that The Respondent driven by malice and bad faith and with support of his former Supervisor wrote emails to the Insurance Regulatory Authority (IRA) and the Appellant's new employer, Britam.
4. As a result the Appellant contract with Britam was suspended pending the outcome of the investigations by Insurance Regulatory Authority (IRA).
5. The Complainant was found to be unfounded, malicious and dismissed by Insurance Regulatory Authority (I.R.A).
6. The Respondent escalated the attacks on Facebook page "Buyer BewareKenya (ORIGINAL)"where she described the Appellant as a "merciless cold calculated thief'. She concluded by stating "kindly avoid him like a plague please. ”This prompted the filing of the suit in the magistrates court.
7. He submits that during Cross-examination, he told Court that for the Respondent to justify her action, she forged documents to prove her allegations that the Appellant replaced the name of her daughter as beneficiary.
8. He further submits that The Respondent in her testimony said that the Appellant's former boss Philip Githaiga told her that the Appellant had replaced the daughter's name as beneficiary with his own daughter and that a number of young ladies had complaints against the Appellant.
9. He advised her to call Britam and give her story to the new Appellant's employer.
10. He further submits that she confirmed posting about the Appellant on buyer beware Facebook page but deleted the post after 2 weeks because people were disturbing her in her inbox.
11. He submits that during Cross-examination, she could not explain the inconsistencies on the amount claimed to have lost. She said she did not have evidence that the Appellant had stolen from other ladies. She admitted that the Mpesa statement relied on to show she sent money to the Appellant did not come from Safaricom. She said that she relied on what the Appellant's former boss told her.
12. It is his case that the Trial Court got the facts right but erred in his analysis of facts and the law hence prompting this appeal. The Appellant raised 8 grounds of appeal namely;
1) FIRST, the Trial Court wrote on paragraph 38 of the Judgement
a. "As mentioned earlier, one LETICIA NANJORA was listed as a beneficiary in at least one policy belonging to the Defendant. Even on this Court alone, the Defendant had a sufficient right to seek audience with the commissioner of insurance to seek remedy for the wrongs perpetrated against her."
2) The Trial Court got it all wrong here. The issue is not seeking audience with the commissioner of insurance but on the basis of false allegation.
3) The information that Leticia Nanjora was the daughter of the Appellant was hearsay. The Respondent said that she was told by a third party who was not even called to testify. No evidence was produced from even the Appellant's former employer to prove that the said Leticia was his daughter and/or beneficiary.
4) The only document which was produced by the Defendant on this issue is Policy No. 027/VAT/044194 (See Page 67). It commences on 27th September 2010 and beneficiaries are listed as Joyce Wambui Gitonga, Tatyana Wambui And Leticia Nainjora. The Insured Is Susan Waithera Gitonga.
5) The Appellant produced a document Policy No. 027/CEA/098910 (See page 50). The policy holder is CLAIRE NANGILA SIMIYU. Beneficiaries Are METICIA NAINJORA (Daughter) And FRANCIS MITUNGO (Husband). The policy commenced on 28 th February 2016.
6) The Appellant's position is that the policy produced by the Respondent is forged and edited in order to justify her malicious action against the Appellant, The policy commenced on 27 th September 2010 and TATYANA WAMBUI, the Respondent's daughter is listed as a beneficiary.
7) However on page 13 of the Record of Appeal paragraph 6, the Respondent writes to the commissioner of Insurance on October 27, 2017;
a. "In April 2015, I was blessed with a daughter, Tatyana Wambui, and I opened an education policy for her in ICEA with his guidance. "
8) If the daughter was born in 2015 and the policy was taken in 2010, it means the policy started before Tatyana was born. How did the Respondent knovv that in 5 years time she would give birth to a baby girl and name her Tatyana. It therefore follows that the document produced by the Respondent as a policy from ICEA is forged and if the trial Court relied on it, then the Court reached an erroneous finding.
9) The Trial Court in paragraph 38 of the judgement (see page 118) relied on the fact that Leticia Nanjorawas listed as a beneficiary and on that account alone the Respondent had a right to seek redress.
10) He submits that the Trial Court erred in arriving at such conclusion.
11) Even if the court were to assume that the said policy had accurate information, there was no evidence tendered that the name Leticia was added as a beneficiary by the Appellant. The document was not found in his possession. There was no basis to conclude that it is the Appellant who aclclecl the narnc and that Leticia was his daughter, even after producing a policy showing the parents of Leticia.
12) SECONDLY; it is on January 2017 per page 41 of the Record of Appeal and moved to Britam, a competitor of his former employer. Following the resignation, ICEA put up a notice on the Daily Nation News of 14th February 2017 notifying the general public that the Appellant was no longer their agent and therefore not authorized to transact on their behalf. The email to IRA Commissioner is dated October 27, 2017.
13) The Respondent stated in her evidence in Chief at page 110, paragraph 7 states;
a. "Philip Gitonga "read Githaiga" told me that I am not the first one who has complained that I should call Britam to give my story. "
13. It is his case that the court in its judgment dismissed the suit with costs precipitating the filing of the appeal that is before the court for determination.
14. It is his case that the malice on the part of the Respondent is demonstrated by the fact that even after reporting to the concerned authorities, she still launched a social media Campaign and even took time to visit the Appellant's.
15. Reliance is placed in the case of In the case of John Ward -Vs- Standard Limited (2006) eKLR, they observed that;
"a statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt of which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. "
16. It is his case that the Respondent described him in her social media post as merciless, cold and calculative thief. She pleaded with the public to avoid him like plague. The Buyer beware had the largest following at the time. It is clear that her intention was to injure the profession of the Appellant.
17. In Nation Media Group Ltd & 2 Others -Vs- John Joseph Kamotho & 3 Others (2019) eKLR, the Appellate court held that;
"obviously, reputation is an integral and important party of dignity of an individual and once besmirched by an unfounded allegation a reputation can be damaged forever especially if there is no opportunity to vindicate one's reputation".
18. Article 28 of the Constitution of Kenya states that;
"every person has inherent dignity and the right to have that dignity respected and protected. "
19. Reliance is also placed in the case of in the case of Uren -Vs- John Fairfax & Sons Pty, 117 CLR 115, 150, Windeyer J held that;
"it seems to me through properly speaking, a man defamed does not get compensation for his damaged reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. "
The Respondents case:
20. The Respondent’s case is that she engaged the Appellant as her insurance agent at ICEA Lion Assurance Co. Ltd between 2012 and 2017.
21. It is her case that during this period, the Appellant fraudulently diverted Kshs. 115,000.00 meant for the Respondent's insurance premiums, as corroborated by bank records and her police report (0B/ 45/2/2/2017).
22. She argues further that the appellant unlawfully added "Leticia Nanjora" —allegedly his daughter — as a beneficiary to the Respondent's policy without her knowledge or consent.
23. Upon discovering these irregularities in December 2016, the Respondent argued that she reported the matter to ICEA's management.
24. Their investigation revealed a pattern of similar complaints against the Appellant, leading to his forced resignation and a public notice in the Daily Nation (14/02/2017) disavowing his association with ICEA according to her.
25. The Appellant subsequently joined Britam Insurance, where his employment was terminated after further complaints, including one from the Respondent to the IRA (27/10/2017) according to her.
26. It is her case that in October 2017, the Respondent encountered a Facebook page ("Buyer Beware Kenya") where multiple women accused the Appellant of misconduct.
27. She argues that she shared her experience to alert the public, but deleted the post within two weeks due to overwhelming messages from members of the public.The Appellant, instead of addressing the fraud claims, sued for defamation.
Analysis and determination;
28. This court has looked at the record of appeal,the memorandum of appeal, the judgment, the rival submissions, and come to the conclusion that the following are the issues for determination;
1) Whether or not that appeal has merit.
2) Who shall be the cost.
Whether or not that appeal has merit.
29. While sitting on appeal and in reviewing the case and the evidence this court is guided by principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where it was held thus"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
30. The appellant pleaded as follows in the plaint, That in a n e m a i l d a t e d O c t o b e r 27th, 2 0 1 7 from t h e D e f e n da n t to the Commissioner of Insurance entitled "swindled by icea agent julius kibera and icea's failure to make it right", the Defendant wrote and published the following words in reference to the Plaintiff;
"I was swindled by ICEA Lion Itd Agent Julius Kibera.
"on viewing the statement, Kibera had failed to submit premium at times, like the whole of 2014, yet I had been sending him mpesa without fail since 2012".
I also discovered that he had added another next of kin to my policy, in addition to my mother, called Leticia Nainjora who was listed as my . . . . daughter. On reporting to his boss, Philip Githaiga, he told me Leticia was Kibera's daughter. It was apparent Kibera in a cold hearted way intended to cash in on my death, God forbid".
31. The Defendant further posted and/or caused to be published the following words of and concerning the Plaintiff in a social website known a s Buyer Beware Kenya (ORIGINAL);
"Julius Kibera Gituro is a merciless, cold, calculated thief who preys on ladies and men, especially single mothers. He was my insurance agent and I have known him for almost 20 years, though he was a great friend a n d trusted him hugely. Little did I know he was heartlessly taking advantage of my trust. Now I am paying for my mistake. I found out this year he had put his own next of kin in my ICEA life insurance policy called Leticia Nainjora labeled as my - daughter without my knowledge................. The cold hearted thief h a d been pocketing my money..... The level of trust I had for this heartless thief was great. I was thus very shocked to find out when I received my statement that he had only put 100,000/= into the Growth Fund Account and pocketed 115,000/=. My calls to him went unanswered and when I went to ICEA to report him that is where I discovered of the further robberies he had done to me through the arrears in my policies and the fake next of kin in my life insurance policy. This was a cold hearted bastard who was planning to cash in on my death, God forbid. Kindly avoid him like - -a plague please.....
32. The Appellant argued that the email and the post by the Defendant concerning the Plaintiff were false, malicious defamatory and in their natural and ordinary meaning as published meant that;
(a) The Plaintiff is untrustworthy, immoral and dishonest person.
(b) The Plaintiff is a criminal, corrupt and a fraudster.
33. As a consequence of the said mail and post published by the Defendant, the Plaintiff's reputation damaged and the Plaintiff suffered considerable distress and embarrassment, lost his job and Clientele.
34. In the case of John Ward -Vs- Standard Limited (2006) eKLR, the court observed that;
"a statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt of which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. "
35. The court has taken note of the Respondent’s case to the effect that in October 2017, she encountered a Facebook page ("Buyer Beware Kenya") where multiple women accused the Appellant of misconduct.
36. She admits that she shared her experience to alert the public, but deleted the post within two weeks due to overwhelming messages from members of the public.
37. In order to succeed in a claim for defamation, the plaintiff must prove that:
(a) The publication complained of by the plaintiff was defamatory;
(b) The publications referred to the plaintiff;
(c) The words in the publication were published; and
(d) The statement was malicious.
38. In Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR the court explained malice as follows:
“Malicious here does not necessarily mean spite or ill will but there must be evidence of malice and lack of justifiable cause to utter the words complained of. Evidence showing the defendant knew the words complained of were false or did not care to verify can be evidence of malice”
39. Under Section 107 of the Evidence Act the burden of proof lies on he who asserts the existence of a fact. The burden of proving that a statement is defamatory therefore lays on the plaintiff.
40. The Appellant ought to show that the words used were defamatory in that they lowered the his reputation in the estimation of right-minded persons in the society. The words complained of must be shown to have injured the reputation, character or dignity of the Appellant.
41. The burden of proof shifts to a defendant to prove any of the principal defences in defamation by virtue of section 107 of the Evidence Act in line with the phrase “he who alleges must prove”. The defendant must prove that the defamatory statement is substantially true for the defence of justification.
42. A defamatory statement is presumed to be false, unless the defendant can prove its truth. In the instant case the Respondent did not prove any justifiable cause that led her to utter the words complained of.
43. In an attempt to justify the posts on social media, it is the respondents case that in October 2017, encountered a Facebook page ("Buyer Beware Kenya") where multiple women accused the Appellant of misconduct.
44. According to her,she shared her experience to alert the public, but deleted the post within two weeks due to overwhelming messages from members of the public.
45. The fact that she decided to share her experience so as to alert the public was reckless and prejudicial to the appellant.
46. The fact that she waited for two weeks before deleting the content shows that she had the capacity to reason and even apply reason in what she was doing.She must have gone through a deliberate premeditation before deciding to delete the post. She deleted the post on her own volition after it had irredeemably caused the Appellant a lot of damage.
47. The fact that she says she deleted the post due to overwhelming messages that she received from members of the public is a clear demonstration of how much damage the post had caused on the appellant’s image.
48. The foregoing cannot amount to a The defence of justification as set out in Section 14 of the Defamation Act.
49. Justification is the assertion that the words published are true in substance and in fact. Failure to justify the defamatory words will exposed the Respondent to aggravated damages. The Respondent did not establish the truth of the post.
50. The court also notes that the IRA and the Appellant's employer had dismissed the allegations as baseless. The Respondent ignored this.
51. The court finds that the Respondent defamed the Appellant.
52. In assessing the damages to award the appellant the court has looked at the plaint and what the Appellant pleaded.
53. The Plaintiff relies on the following facts in support of his suit for damages against the Defendant;
(a) That the Plaintiff is a reputed long standing Insurance Agent registered by Insurance Regulatory Authority.
(b) That the Defendant should have verified the information before labeling the accusations and going public.
(c) That the Plaintiff demanded an apology and retraction of the defamator accusations but the Defendant refused.
(d) That the Plaintiff suffered serious material, financial loss and dented reputation.
54. In the case of Daniel Musinga (then advocate, now Court of Appeal Judge) v Nation Newspapers Limited (2005) eKLR – Kshs. 4 million.
55. In James Okoth Omburah (advocate) v Standard Media Group & Others (2013) eKLR – Kshs. 4.5 million.
56. In Ambassador Chirau Ali Makwere v Royal Media Services (20130 eKLR– Kshs. 6 million.
57. The court has from the employment status been able to assess that the appellant is entitled to Kshs. 400,000 general damages so hold.
Costs;
58. In determining the issue of costs this court is guided by the principles as enunciated in the cases of Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No 66 of 2009; [2012] eKLR; and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR); and Kuloba, R., (Ed) (2011) Judicial Hints on Civil Procedure Nairobi: Law Africa 2nd Edn p 94.
6. Mackay, JPH., (Baron of Clashfern) (Ed) (1991) Halsbury’s Laws of England London: LexisNexis Butterworths 4th Edn Re-Issue Vol 10 para 16 is instructive on the Court’s discretion on costs in general, where it was stated that “ the Court has discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially, it must not be exercised arbitrarily but in accordance with reason and justice. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different.
59. The appellant is entitled to costs.
Determination;
60. The appeal has merit.
Order:
1. The Appeal is allowed in the following terms.
2. The judgement is hereby set aside.
3. The appellant shall get Kshs.400,000 as general damages.
4.Costs to the appellant.