REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
(CIVIL APPEAL DIVISION)
CIVIL APPEAL NO. E095 OF 2022
MIGUI MACHARIA MUNGAI .................................................................... APPELLANT
-VERSUS-
FRANKLIN MAINA GATHERU ............................................................... RESPONDENT
(Being an Appeal from the Judgment and Decree of the Chief Magistrate’s Court at Mavoko Law Courts, delivered on the 6th June 2022 by the Hon. R. Gitau (Ms.) (SRM) in Mavoko Civil Suit No. 127 of 2019).
JUDGEMENT
Brief Facts of the case
1. The Appellant and the Respondent herein are both residents of Bustani Villas Estate in Mavoko Sub –County, Machakos County.
2. Bustani Villas Estate is managed by a Management Company known as Bustani Villas Management Co. Ltd whereby both the Plaintiff and the Respondent are shareholders. The Respondent is also the Chairman of the said company.
3. The Estate has a WhatsApp group known as Bustani Home Owners where the owners share ideas and concerns as to the running of the estate. It has one hundred and three (103) participants.
4. The Appellant and the Respondent herein have been having differences as to the smooth running and management affairs of Bustani Villas Management Co. Ltd whereby the Appellant has been demanding for audited accounts from the Respondent as the Chair of the Board and for the board chaired by the Respondent to take responsibility for constructing an unapproved structure on the children’s playground with funds of members of the estate and without their approval.
5. On 24th February 2018, after the Appellant demanded for a meeting in the aforesaid WhatsApp group and for the audit report to be tabled by the board, the Respondent posted the following words which he considers to be defamatory: -
“Peris the secretary has 0 names interested in a meeting. Wacheni pang’ang’a mob convene the meeting mtutoe. We also have things to do with our time. And those with fraud cases in court to 1st get cleared before they seek to be my director”
“So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”
6. The Appellant (Plaintiff) sued the Respondent (Defendant) by a Plaint dated 21st February 2019 asserting that the words above published by the Respondent were scandalous, defamatory and malicious meant to harm the Appellant’s esteem in the society and would be in their normal and ordinary course be interpreted to mean that the Appellant is a fraudster and untrustworthy person.
7. The Appellant sought for orders that:
a) A permanent injunction to restrain the Defendant from printing and or publishing whether in written form or otherwise commenting in any negative form or manner about the Plaintiff.
b) General & Exemplary Damages for libel
c) Costs of the suits
d) Interest at Court rates
e) Any other relief the honourable court may deem fit to grant.
8. The Respondent filed a Defence dated 16th April 2019 denying the Appellant’s claim and stated that the published words did not mention or refer to the Plaintiff in any way and prayed that the Plaintiff’s suit be dismissed with costs.
9. The case proceeded for hearing and the trial court in a judgment delivered on 6th June 2022, dismissed the suit on the grounds that the Appellant had not proved all the ingredients of the tort of defamation on a balance of probability.
10. The Learned Magistrate observed that the words published in the WhatsApp group were indeed published by the Respondent and that they were defamatory in nature however there was no evidence that the words referred to the Appellant and that the words could not be considered to be false as the Appellant conceded to have been charged with a fraud case.
11. Being aggrieved by the said judgement, the Appellant lodged the appeal herein vide a Memorandum of Appeal dated 5th July 2022 seeking to overturn the aforesaid decision. The Memorandum of Appeal raises 9 grounds as follows;
a) That the learned Magistrate erred in law and in fact in failing to appreciate the triable issues in the Appellant’s pleadings and evidence and in dismissing the Appellant’s Claim.
b) That the learned trial Magistrate erred in law and in fact in failing to weigh the evidence and testimony of the Appellant as against the Respondent’s evidence.
c) That the trial Magistrate erred in law and in fact in failing to evaluate the electronic evidence adduced by the parties in reaching her final determination.
d) That the trial Magistrate erred in law and in fact in failing to appreciate that defamatory words were published via WhatsApp Chat to specific members of the WhatsApp group and not to the general public thus misapplying the standard of proof for required in defamation case.
e) That the learned trail Magistrate erred in law and in fact in failing to appreciate that defamatory words were published via WhatsApp Chat by the Respondent in direct response to a query made by the Appellant thus the words could only be in reference to the Appellant.
f) That the learned Magistrate erred in law and in fact and contradicted herself by holding that the defamatory words were indeed printed by the Respondent, that the words were defamatory in nature but that they did not refer to the Appellant.
g) That the trial Magistrate erred in law and in fact in finding that the Respondent was not referring to the Appellant when he uttered the defamatory words yet the Respondent did not state or reveal to whom the words referred.
h) That the learned Magistrate erred in law and in fact in upholding the Respondent’s testimony on justification whereas this line of Defence was not pleaded in the Respondent’s Statement of Defence.
i) That the learned trial Magistrate erred in law and in fact in holding that the Respondent was entitled to the costs of the suit payable by the Appellant.
12. The appeal was canvassed through written submissions. The Appellant filed submissions dated 12th February 2025 and Supplementary submissions dated 23rd July 2025 while the Respondent’s submissions are dated 12th March 2025.
Analysis and Determination.
13. The duty of this court as a first appellate court is to re-evaluate the evidence and arrive at its own conclusions. In so doing, the court must take into account the fact that it had no opportunity to hear and see witnesses, and therefore must make an allowance for that. (See: Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123).
14. I have gone through and carefully considered the Record of Appeal dated 18th May 2023 and written submissions filed herein.
15. I have also noted that the grounds of appeal in the memorandum of appeal revolve around three issues which include;
i. Whether the published words refer to the Appellant and if so whether they are defamatory.
ii. Whether the Respondent pleaded the defence of Justification?
iii. Whether the Respondent is entitled to costs of the suit?
16. I will therefore proceed to determine the appeal based on the three issues above.
i. Whether the published words refer to the Appellant and if so whether they are defamatory.
17. The Appellant submitted that the trial court erred in law and principle in finding that the defamatory words published by the Respondent did not refer to the Appellant and that the Appellant did not establish the standard of proof required in defamation cases. The trial court did acknowledge in its judgment that the Respondent indeed published defamatory words in the WhatsApp group of 103 participants known as Bustani Home Owners where both the Appellant and the Respondent are members.
18. It is submitted that the Respondent published the defamatory words as a reaction to the Appellant’s request for a meeting and for an audit report from the Respondent as the Chair of Bustani Villas Management Co. Ltd.
19. That as mentioned before, the Appellant and the Respondent have been having differences as to the smooth running and management affairs of Bustani Villas Management Co. Ltd and the Respondent being aggrieved by the Appellant’s request for a meeting, published the aforesaid defamatory words against the Appellant stating:
“Peris the secretary has 0 names interested in a meeting. Wacheni pang’ang’a mob. Convene the meeting mtutoe. We also have things to do with our time.” “And those with fraud cases in court to 1st get cleared before they seek to be my director”
“So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”
20. The Appellant submitted that the said defamatory words referred to the Appellant and anybody in the WhatsApp group who was aware of the dispute between the Appellant and the Respondent would have understood that the words referred to the Appellant.
21. The meeting referred to by the Respondent was requested by the Appellant and the “fraud cases in court” were also in reference to the Appellant. A fact that was acknowledged by the court when it stated at page 5 of its Judgement that:
“… the Plaintiff had conceded on oath to having been charged with a fraud case. Consequently, there is no doubt that the defamatory words referred to the Appellant”.
22. The Appellant submitted that further to the above, the Respondent did not have to refer to the Appellant by name as members of the WhatsApp group clearly understood who the message referred to. Reliance was made to Ahmednassir Maalim Abdullahi v Star Publications Limited [2019] eKLR and emphasized in Julius Ndegwa Kariuki v Standard Group Limited & Geoffrey Mosoku [2020] eKLR .
23. Also, in Mwangi Kiunjuri vs Wangethi Mwangi & 2 Others [2016] KECA 648 (KLR) the court held that where identification is in issue, it is the duty of the trial Court to rule whether or not the words are capable of being understood to refer to the Plaintiff.
24. In his supplementary submissions, the Appellant referred to the decision in High Court Civil Case No. 174 of 2018 – Dr. Selina Vukinu Ambe –vs- Cyllus Godfrey Onyango [2024] KEHC 6138 (KLR) (Civ) (24 May 2024) which resonates with the facts of the Appeal filed herein on all fours. In this case, the Plaintiff and the Defendant were residents of Greenpark Cluster Three in Machakos County. The Respondent posted a message on the said Estate WhatsApp Group where they were both members in the following terms:
"Isaac, you are being Modest, its bullshit period. We can't allow one person to muzzle is a deny our children development that they need."
25. Although in the above case themessage did not name the Plaintiff directly, the Plaintiff and her witnesses were able to prove that the said the malicious post was in response to the Plaintiff's decision to obtain a court order to stop developments in the estate's open ground until an ongoing case was heard and determined.
26. The Appellant submitted that similarly, in the instant Appeal, the Respondent did not have to refer to the Appellant by name as members of the WhatsApp group clearly understood who the message referred to.
27. On the other hand, the Respondent submitted that it is clear from the judgment that the trial court came up with issues for determination, handled the various issues raised and dismissed the Appellant's suit. Clearly the trial court did appreciate the triable issues raised by the Appellant as well as the Respondent. The court also considered the evidence tendered by parties including the Appellant and though it made a finding that the words were defamatory, the conclusion by the trial court was that the Appellant did not prove that the words referred to him. From the judgment delivered by the trial court, it is clear that the trial court considered the issues, weighed the evidence presented by the parties and arrived at its decision. The Respondent submitted that grounds 1, 2 and 3 in the Memorandum of Appeal are not merited and they should fail.
28. On grounds 4, 5, 6 and 7 challenging the trial court's failure to appreciate that defamatory words were published to a specific member of the group and that the specific words referred to the Appellant and thus the trial court erred in making a finding that the Respondent was not referring to the Appellant yet the Respondent did not reveal to who the words were referring to. The Respondent relied on Section 107(1) of the Evidence Act places a burden on the person who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts exist. The question is whether the Appellant discharged the burden placed upon him by section 107 of the Evidence Act. It is clear from the evidence presented that the Appellant failed to discharge the burden placed upon him.
29. That at page 4 of the trial court's judgement the court made the following finding;
"It is undisputed that the Plaintiff name was not specifically mentioned in the post. The Plaintiff bore the burden of proving that sensible readers of the post within the WhatsApp group with knowledge of special fact could and did understand the post to refer to the Plaintiff. The Plaintiff did not call any witnesses to support his claim that they interpreted the post to refer to him"
30. That the trial court went on to hold that the Appellant ought to have called witnesses who would have testified whether they knew that the Appellant had a fraud case in court. The trial court was unable to tell whether the statement said to be defamatory referred to the Appellant in a group that had more than 100 members. The trial court was thus correct in finding that the Appellant had not discharged his burden in proving that the words complained about referred to him.
31. That the evidence by the Appellant is as follows during cross examination;
"At the time, I had a fraud case in court. The statement is thus true. The context in which the words were made if they thought I had shortened (sic) anything. They ought to have brought the proof...But there is not mention of my name"
32. It was submitted that at page 5 of the judgment, the trial court made a finding that the Plaintiff had conceded having been charged with a fraud case. Even if the Appellant had proved that the words alleged to be defamatory referred to him, the Respondent would have been entitled to plead justification since the Appellant admitted having been charged with fraud.
33. Reliance was placed on the Court of Appeal at Nairobi Civil Appeal No. 56 of 2006 SMW vs. ZWM, the Court of Appeal considered the question of defamation and held that;
“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. (emphasis added). 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: see Gatley on Libel and Slander (10th edition). A plaintiff in a defamation case must prove that the words were spoken [written; that those words refer to him/her; that those words are false; that the words are defamatory or libelous and that he/she suffered injury to reputation as a result. In the case before the court, it is not disputed that the letter in issue was written by the Respondent and the words referred to the Appellant: see Winfield & Jolowicz on Tort (8th edition) 1967 at page 255"
34. The ingredients of defamation were outlined in the case of John Edward vs Standard Ltd (2006) where the court stated that:-
“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are:
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. The same position was reiterated by the Court of Appeal in the case of Wycliff A. Swanya v Toyota East Africa Ltd & Another Civil Appeal No. 70 of 2008 (2009) eKLR where it was held that:-
“For the purpose of deciding a case of defamation, the court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. It is common ground that a suit founded on defamation, the Plaintiff must prove:-
a) That the matter of which the Plaintiff complains is defamatory in character
b) That the defamatory statement or utterance was published by the Defendant. publication in the sense of defamation means the defamatory statement was communicated to someone other than the person defamed
c) that it was published maliciously
d) in slander, subject to certain exceptions, that the Plaintiff has suffered special damage”
36. Hulsbury’s Laws of England 4th Edition Vol.28 defines defamatory as follows:-
“A defamatory statement is 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 or ridicule to covey any an imputation on him disparaging or injuries to him in his office, profession, calling, trade or business”
37. Hulsbury’s Laws of England (supra) at page 23 provides the test for whether a statement is defamatory in the following terms:
“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under any circumstances in which the were published, a reasonable man to whom the publication was made would be likely to understand them in defamatory sense.”
38. It is not in dispute that the Appellant and the Respondent herein had been having differences as to the smooth running and management affairs of Bustani Villas Management Co. Ltd whereby the Appellant was demanding for audited accounts from the Respondent as the Chair of the Board and for the board chaired by the Respondent to take responsibility for constructing an unapproved structure on the children’s playground with funds of members of the estate and without their approval.
39. I have also gone through the relevant communications in the subject WhatsApp group herein and more so the message complained of by the Appellant. I am able to extract the following message:
“....And those with fraud cases in court to 1st get cleared before they seek to be my director”
“So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”
40. It is not disputed that the Respondent published the above message in the said WhatsApp group. I have further gathered that the person who made demands to the Respondent was none other than the Appellant and that it is the Appellant who had a criminal case of fraud in court, a fact he admitted. Clearly, the message was directed to the Appellant.
41. I must also state that I have not come across evidence that was presented in court by the Respondent as to whether the said case was determined and the Appellant found guilty. According to me, the Appellant was presumed innocent until proven guilty. By stating that “So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”, the Respondent depicted the Appellant as a “fraudster”.
42. A fraudster is a fraudulent person, a thief, dishonest and unworthy person.
On the foregoing circumstances, the natural and ordinary understanding of reasonable man would be that of the published words and statements being defamatory to the Appellant.
43. There is no doubt that the words published by the Respondent were defamatory in nature as they were published to members of the WhatsApp group Bustani Home Owners who had special knowledge of the dispute between the Appellant and the Respondent and that the words were published in response to the Appellant’s request for a meeting and production of audit reports.
44. The Appellant herein has proved on a balance of probabilities that the words published in the aforesaid WhatsApp group were indeed published by the Respondent and that they were defamatory in nature, that they referred to the Appellant and that they were false and though the Appellant had ongoing fraud cases there was no judgment and/or ruling on record portraying the Appellant as a fraudster.
ii. Whether the Respondent pleaded the defence of Justification?
45. It is trite law that in defamation cases the defence of justification should be raised by the Defendant and that the burden to prove the existence of the alleged facts lies on the Defendant as illustrated in Raphael Lukale v Elizabeth Mayabi & another [2016] eKLR.
46. In this case, the trial court found that Appellant did not prove that the statement was false, it referred to him or that in lowered him in the estimation of the right-thinking members of the society or that it exposed him to contempt or ridicule. In fact, the Appellant confirmed that he had a fraud case against him and even if he had proved that the words referred to him, the Respondent would have been entitled to the defence of justification.
47. The Respondent referred to the Statement of Defence by the Respondent is found at pages 7 to 9 of the Record of Appeal. At paragraph 14, the Respondent pleaded as follows;
"The Defendant in further response to the paragraphs 12, 13 and 14 of the Plaint states that the published words did not mention or refer to the plaintiff in any way"
48. That the Respondent's line of defence was that the words alleged to be defamatory did not refer to the Appellant. It is clear from the trial court's judgment that it is in fact the Appellant who admitted having been charged with fraud. With the said admission, the trial court pointed that justification would be a defence available to the Respondent.
49. On the above, it is my considered view that the Respondent having denied and maintained that the words did not refer to the Appellant could not rely on the defence of justification. In any event, the Appellant only admitted to having been charged with fraud but not convicted of the same.
50. I have perused through the Defence dated 16th April 2019 and I note that the Respondent did not at all plead the defence of justification and therefore the trial court was wrong in upholding the Respondent’s testimony on justification.
51. From the foregoing, I find that the Appellant proved that he was defamed by the Respondent the subject Estate’s WhatsApp group, the court is now left to determine the issue of damages.
52. An award of damages in defamation case is discretionary. This was succinctly put by the Court of Appeal in C A M V Royal Media Services Limited Civil Appeal No 283 OF 2005[2013] eKLR when it stated that:
“No case is like the other. In the exercise of discretion to award damages for defamation, the court has wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones V Pollard (1997) EMLR 233-243include objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published and any repetition; subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.”
53. The Appellant (Plaintiff) submitted for a sum of Kshs.5,000,000/= for general damages and Kshs.1,000,000/= as exemplary damages. Counsel for the Appellant cited the following cases:
• Hon. Uhuru Muigai Kenyatta v Baraza Limited (2011) eKLR where Rawal J(as he then was) awarded Kshs.7,000,000/= to the Plaintiff.
• Patrick Nyoike v People Limited (2013) eKLR where Ougo J awarded the Plaintiff Kshs.4,000,000/= general damages and Kshs.100.000/= aggravated damages.
• Ken Odondi & 2 Others v James Okoth Omburah T/A Okoth Omburah & Co. Advocates (2013) eKLR where the Court of Appeal awarded the Appellant Kshs,4,000,000/= general damages for libel and Kshs.500,000/= aggravated damages and
• Abdi Mohamed Farah v Nairobi Star Publication Ltd & Anor (2015) eKLR where the court awarded the Appellant Kshs.3,000,000/= general damages and Kshs.1,00,000/= aggravated damages.
54. The Appellant was said to be an Advocate of the High Court of Kenya, then with twenty-two (22) years post admission experience and who specialized in Commercial Law and Litigation. It is my finding that the Respondent’s conduct to cause publication of the defamatory words caused the Appellant to suffer loss of reputation and to be shunned and held in low esteem by the residents and home owners within Bustani Estate where he lived and resided with his immediate family as a result of which the Appellant suffered loss. After considering the authorities cited by the plaintiff and taking into account the inflation rate and the age of the said cases, I award the plaintiff Kshs.2,000,000/= as general damages as against the Respondent.
55. I will not make any award on exemplary damages because though they were pleaded they were not proved. According to Duncan and Neill on Defamation (2nd Edition, 1983) which was cited with approval in John Versus Mgn Ltd (1996) 2All Er35 At Page 52:-
“Exemplary damages can only be awarded if the plaintiff proves that the defendant when he made the publication knew that he was committing a tort or was reckless whether his action was tortious or not, and decided to publish because the prospects of the material advantage outweighed the prospects of the material loss. What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chance of economic, or perhaps physical, penalty.”
iii. Whether the Respondent is entitled to costs of the suit?
56. On the question of costs of the application, the general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. In Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR. The Supreme Court held that costs follow the event and that the Court has the discretion in awarding such costs.
Disposition.
57. In the end, I will set aside the Judgment and Decree of the Chief Magistrate’s Court at Mavoko Law Courts, delivered on the 6th June 2022 and allow the Appellant’s Claim as follows:
a) The Appellant is awarded Kenya Shillings Three Million (Kshs.3,000.000/=) damages for defamation of character.
b) The Appellant will have the costs of the suit and appeal together with interest at court rates from the date of this judgement till payment in full.
c) There shall be a forty-five (45) days stay of execution.
It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 10TH JUNE 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH DECEMBER 2025
IN THE HIGH COURT OF KENYA AT MACHAKOS
(CIVIL APPEAL DIVISION)
CIVIL APPEAL NO. E095 OF 2022
MIGUI MACHARIA MUNGAI .................................................................... APPELLANT
-VERSUS-
FRANKLIN MAINA GATHERU ............................................................... RESPONDENT
(Being an Appeal from the Judgment and Decree of the Chief Magistrate’s Court at Mavoko Law Courts, delivered on the 6th June 2022 by the Hon. R. Gitau (Ms.) (SRM) in Mavoko Civil Suit No. 127 of 2019).
JUDGEMENT
Brief Facts of the case
1. The Appellant and the Respondent herein are both residents of Bustani Villas Estate in Mavoko Sub –County, Machakos County.
2. Bustani Villas Estate is managed by a Management Company known as Bustani Villas Management Co. Ltd whereby both the Plaintiff and the Respondent are shareholders. The Respondent is also the Chairman of the said company.
3. The Estate has a WhatsApp group known as Bustani Home Owners where the owners share ideas and concerns as to the running of the estate. It has one hundred and three (103) participants.
4. The Appellant and the Respondent herein have been having differences as to the smooth running and management affairs of Bustani Villas Management Co. Ltd whereby the Appellant has been demanding for audited accounts from the Respondent as the Chair of the Board and for the board chaired by the Respondent to take responsibility for constructing an unapproved structure on the children’s playground with funds of members of the estate and without their approval.
5. On 24th February 2018, after the Appellant demanded for a meeting in the aforesaid WhatsApp group and for the audit report to be tabled by the board, the Respondent posted the following words which he considers to be defamatory: -
“Peris the secretary has 0 names interested in a meeting. Wacheni pang’ang’a mob convene the meeting mtutoe. We also have things to do with our time. And those with fraud cases in court to 1st get cleared before they seek to be my director”
“So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”
6. The Appellant (Plaintiff) sued the Respondent (Defendant) by a Plaint dated 21st February 2019 asserting that the words above published by the Respondent were scandalous, defamatory and malicious meant to harm the Appellant’s esteem in the society and would be in their normal and ordinary course be interpreted to mean that the Appellant is a fraudster and untrustworthy person.
7. The Appellant sought for orders that:
a) A permanent injunction to restrain the Defendant from printing and or publishing whether in written form or otherwise commenting in any negative form or manner about the Plaintiff.
b) General & Exemplary Damages for libel
c) Costs of the suits
d) Interest at Court rates
e) Any other relief the honourable court may deem fit to grant.
8. The Respondent filed a Defence dated 16th April 2019 denying the Appellant’s claim and stated that the published words did not mention or refer to the Plaintiff in any way and prayed that the Plaintiff’s suit be dismissed with costs.
9. The case proceeded for hearing and the trial court in a judgment delivered on 6th June 2022, dismissed the suit on the grounds that the Appellant had not proved all the ingredients of the tort of defamation on a balance of probability.
10. The Learned Magistrate observed that the words published in the WhatsApp group were indeed published by the Respondent and that they were defamatory in nature however there was no evidence that the words referred to the Appellant and that the words could not be considered to be false as the Appellant conceded to have been charged with a fraud case.
11. Being aggrieved by the said judgement, the Appellant lodged the appeal herein vide a Memorandum of Appeal dated 5th July 2022 seeking to overturn the aforesaid decision. The Memorandum of Appeal raises 9 grounds as follows;
a) That the learned Magistrate erred in law and in fact in failing to appreciate the triable issues in the Appellant’s pleadings and evidence and in dismissing the Appellant’s Claim.
b) That the learned trial Magistrate erred in law and in fact in failing to weigh the evidence and testimony of the Appellant as against the Respondent’s evidence.
c) That the trial Magistrate erred in law and in fact in failing to evaluate the electronic evidence adduced by the parties in reaching her final determination.
d) That the trial Magistrate erred in law and in fact in failing to appreciate that defamatory words were published via WhatsApp Chat to specific members of the WhatsApp group and not to the general public thus misapplying the standard of proof for required in defamation case.
e) That the learned trail Magistrate erred in law and in fact in failing to appreciate that defamatory words were published via WhatsApp Chat by the Respondent in direct response to a query made by the Appellant thus the words could only be in reference to the Appellant.
f) That the learned Magistrate erred in law and in fact and contradicted herself by holding that the defamatory words were indeed printed by the Respondent, that the words were defamatory in nature but that they did not refer to the Appellant.
g) That the trial Magistrate erred in law and in fact in finding that the Respondent was not referring to the Appellant when he uttered the defamatory words yet the Respondent did not state or reveal to whom the words referred.
h) That the learned Magistrate erred in law and in fact in upholding the Respondent’s testimony on justification whereas this line of Defence was not pleaded in the Respondent’s Statement of Defence.
i) That the learned trial Magistrate erred in law and in fact in holding that the Respondent was entitled to the costs of the suit payable by the Appellant.
12. The appeal was canvassed through written submissions. The Appellant filed submissions dated 12th February 2025 and Supplementary submissions dated 23rd July 2025 while the Respondent’s submissions are dated 12th March 2025.
Analysis and Determination.
13. The duty of this court as a first appellate court is to re-evaluate the evidence and arrive at its own conclusions. In so doing, the court must take into account the fact that it had no opportunity to hear and see witnesses, and therefore must make an allowance for that. (See: Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123).
14. I have gone through and carefully considered the Record of Appeal dated 18th May 2023 and written submissions filed herein.
15. I have also noted that the grounds of appeal in the memorandum of appeal revolve around three issues which include;
i. Whether the published words refer to the Appellant and if so whether they are defamatory.
ii. Whether the Respondent pleaded the defence of Justification?
iii. Whether the Respondent is entitled to costs of the suit?
16. I will therefore proceed to determine the appeal based on the three issues above.
i. Whether the published words refer to the Appellant and if so whether they are defamatory.
17. The Appellant submitted that the trial court erred in law and principle in finding that the defamatory words published by the Respondent did not refer to the Appellant and that the Appellant did not establish the standard of proof required in defamation cases. The trial court did acknowledge in its judgment that the Respondent indeed published defamatory words in the WhatsApp group of 103 participants known as Bustani Home Owners where both the Appellant and the Respondent are members.
18. It is submitted that the Respondent published the defamatory words as a reaction to the Appellant’s request for a meeting and for an audit report from the Respondent as the Chair of Bustani Villas Management Co. Ltd.
19. That as mentioned before, the Appellant and the Respondent have been having differences as to the smooth running and management affairs of Bustani Villas Management Co. Ltd and the Respondent being aggrieved by the Appellant’s request for a meeting, published the aforesaid defamatory words against the Appellant stating:
“Peris the secretary has 0 names interested in a meeting. Wacheni pang’ang’a mob. Convene the meeting mtutoe. We also have things to do with our time.” “And those with fraud cases in court to 1st get cleared before they seek to be my director”
“So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”
20. The Appellant submitted that the said defamatory words referred to the Appellant and anybody in the WhatsApp group who was aware of the dispute between the Appellant and the Respondent would have understood that the words referred to the Appellant.
21. The meeting referred to by the Respondent was requested by the Appellant and the “fraud cases in court” were also in reference to the Appellant. A fact that was acknowledged by the court when it stated at page 5 of its Judgement that:
“… the Plaintiff had conceded on oath to having been charged with a fraud case. Consequently, there is no doubt that the defamatory words referred to the Appellant”.
22. The Appellant submitted that further to the above, the Respondent did not have to refer to the Appellant by name as members of the WhatsApp group clearly understood who the message referred to. Reliance was made to Ahmednassir Maalim Abdullahi v Star Publications Limited [2019] eKLR and emphasized in Julius Ndegwa Kariuki v Standard Group Limited & Geoffrey Mosoku [2020] eKLR .
23. Also, in Mwangi Kiunjuri vs Wangethi Mwangi & 2 Others [2016] KECA 648 (KLR) the court held that where identification is in issue, it is the duty of the trial Court to rule whether or not the words are capable of being understood to refer to the Plaintiff.
24. In his supplementary submissions, the Appellant referred to the decision in High Court Civil Case No. 174 of 2018 – Dr. Selina Vukinu Ambe –vs- Cyllus Godfrey Onyango [2024] KEHC 6138 (KLR) (Civ) (24 May 2024) which resonates with the facts of the Appeal filed herein on all fours. In this case, the Plaintiff and the Defendant were residents of Greenpark Cluster Three in Machakos County. The Respondent posted a message on the said Estate WhatsApp Group where they were both members in the following terms:
"Isaac, you are being Modest, its bullshit period. We can't allow one person to muzzle is a deny our children development that they need."
25. Although in the above case themessage did not name the Plaintiff directly, the Plaintiff and her witnesses were able to prove that the said the malicious post was in response to the Plaintiff's decision to obtain a court order to stop developments in the estate's open ground until an ongoing case was heard and determined.
26. The Appellant submitted that similarly, in the instant Appeal, the Respondent did not have to refer to the Appellant by name as members of the WhatsApp group clearly understood who the message referred to.
27. On the other hand, the Respondent submitted that it is clear from the judgment that the trial court came up with issues for determination, handled the various issues raised and dismissed the Appellant's suit. Clearly the trial court did appreciate the triable issues raised by the Appellant as well as the Respondent. The court also considered the evidence tendered by parties including the Appellant and though it made a finding that the words were defamatory, the conclusion by the trial court was that the Appellant did not prove that the words referred to him. From the judgment delivered by the trial court, it is clear that the trial court considered the issues, weighed the evidence presented by the parties and arrived at its decision. The Respondent submitted that grounds 1, 2 and 3 in the Memorandum of Appeal are not merited and they should fail.
28. On grounds 4, 5, 6 and 7 challenging the trial court's failure to appreciate that defamatory words were published to a specific member of the group and that the specific words referred to the Appellant and thus the trial court erred in making a finding that the Respondent was not referring to the Appellant yet the Respondent did not reveal to who the words were referring to. The Respondent relied on Section 107(1) of the Evidence Act places a burden on the person who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts exist. The question is whether the Appellant discharged the burden placed upon him by section 107 of the Evidence Act. It is clear from the evidence presented that the Appellant failed to discharge the burden placed upon him.
29. That at page 4 of the trial court's judgement the court made the following finding;
"It is undisputed that the Plaintiff name was not specifically mentioned in the post. The Plaintiff bore the burden of proving that sensible readers of the post within the WhatsApp group with knowledge of special fact could and did understand the post to refer to the Plaintiff. The Plaintiff did not call any witnesses to support his claim that they interpreted the post to refer to him"
30. That the trial court went on to hold that the Appellant ought to have called witnesses who would have testified whether they knew that the Appellant had a fraud case in court. The trial court was unable to tell whether the statement said to be defamatory referred to the Appellant in a group that had more than 100 members. The trial court was thus correct in finding that the Appellant had not discharged his burden in proving that the words complained about referred to him.
31. That the evidence by the Appellant is as follows during cross examination;
"At the time, I had a fraud case in court. The statement is thus true. The context in which the words were made if they thought I had shortened (sic) anything. They ought to have brought the proof...But there is not mention of my name"
32. It was submitted that at page 5 of the judgment, the trial court made a finding that the Plaintiff had conceded having been charged with a fraud case. Even if the Appellant had proved that the words alleged to be defamatory referred to him, the Respondent would have been entitled to plead justification since the Appellant admitted having been charged with fraud.
33. Reliance was placed on the Court of Appeal at Nairobi Civil Appeal No. 56 of 2006 SMW vs. ZWM, the Court of Appeal considered the question of defamation and held that;
“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. (emphasis added). 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: see Gatley on Libel and Slander (10th edition). A plaintiff in a defamation case must prove that the words were spoken [written; that those words refer to him/her; that those words are false; that the words are defamatory or libelous and that he/she suffered injury to reputation as a result. In the case before the court, it is not disputed that the letter in issue was written by the Respondent and the words referred to the Appellant: see Winfield & Jolowicz on Tort (8th edition) 1967 at page 255"
34. The ingredients of defamation were outlined in the case of John Edward vs Standard Ltd (2006) where the court stated that:-
“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are:
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. The same position was reiterated by the Court of Appeal in the case of Wycliff A. Swanya v Toyota East Africa Ltd & Another Civil Appeal No. 70 of 2008 (2009) eKLR where it was held that:-
“For the purpose of deciding a case of defamation, the court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. It is common ground that a suit founded on defamation, the Plaintiff must prove:-
a) That the matter of which the Plaintiff complains is defamatory in character
b) That the defamatory statement or utterance was published by the Defendant. publication in the sense of defamation means the defamatory statement was communicated to someone other than the person defamed
c) that it was published maliciously
d) in slander, subject to certain exceptions, that the Plaintiff has suffered special damage”
36. Hulsbury’s Laws of England 4th Edition Vol.28 defines defamatory as follows:-
“A defamatory statement is 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 or ridicule to covey any an imputation on him disparaging or injuries to him in his office, profession, calling, trade or business”
37. Hulsbury’s Laws of England (supra) at page 23 provides the test for whether a statement is defamatory in the following terms:
“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under any circumstances in which the were published, a reasonable man to whom the publication was made would be likely to understand them in defamatory sense.”
38. It is not in dispute that the Appellant and the Respondent herein had been having differences as to the smooth running and management affairs of Bustani Villas Management Co. Ltd whereby the Appellant was demanding for audited accounts from the Respondent as the Chair of the Board and for the board chaired by the Respondent to take responsibility for constructing an unapproved structure on the children’s playground with funds of members of the estate and without their approval.
39. I have also gone through the relevant communications in the subject WhatsApp group herein and more so the message complained of by the Appellant. I am able to extract the following message:
“....And those with fraud cases in court to 1st get cleared before they seek to be my director”
“So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”
40. It is not disputed that the Respondent published the above message in the said WhatsApp group. I have further gathered that the person who made demands to the Respondent was none other than the Appellant and that it is the Appellant who had a criminal case of fraud in court, a fact he admitted. Clearly, the message was directed to the Appellant.
41. I must also state that I have not come across evidence that was presented in court by the Respondent as to whether the said case was determined and the Appellant found guilty. According to me, the Appellant was presumed innocent until proven guilty. By stating that “So, you want we create a vacuum so that fraudsters can take over? If you want evidence nione kando”, the Respondent depicted the Appellant as a “fraudster”.
42. A fraudster is a fraudulent person, a thief, dishonest and unworthy person.
On the foregoing circumstances, the natural and ordinary understanding of reasonable man would be that of the published words and statements being defamatory to the Appellant.
43. There is no doubt that the words published by the Respondent were defamatory in nature as they were published to members of the WhatsApp group Bustani Home Owners who had special knowledge of the dispute between the Appellant and the Respondent and that the words were published in response to the Appellant’s request for a meeting and production of audit reports.
44. The Appellant herein has proved on a balance of probabilities that the words published in the aforesaid WhatsApp group were indeed published by the Respondent and that they were defamatory in nature, that they referred to the Appellant and that they were false and though the Appellant had ongoing fraud cases there was no judgment and/or ruling on record portraying the Appellant as a fraudster.
ii. Whether the Respondent pleaded the defence of Justification?
45. It is trite law that in defamation cases the defence of justification should be raised by the Defendant and that the burden to prove the existence of the alleged facts lies on the Defendant as illustrated in Raphael Lukale v Elizabeth Mayabi & another [2016] eKLR.
46. In this case, the trial court found that Appellant did not prove that the statement was false, it referred to him or that in lowered him in the estimation of the right-thinking members of the society or that it exposed him to contempt or ridicule. In fact, the Appellant confirmed that he had a fraud case against him and even if he had proved that the words referred to him, the Respondent would have been entitled to the defence of justification.
47. The Respondent referred to the Statement of Defence by the Respondent is found at pages 7 to 9 of the Record of Appeal. At paragraph 14, the Respondent pleaded as follows;
"The Defendant in further response to the paragraphs 12, 13 and 14 of the Plaint states that the published words did not mention or refer to the plaintiff in any way"
48. That the Respondent's line of defence was that the words alleged to be defamatory did not refer to the Appellant. It is clear from the trial court's judgment that it is in fact the Appellant who admitted having been charged with fraud. With the said admission, the trial court pointed that justification would be a defence available to the Respondent.
49. On the above, it is my considered view that the Respondent having denied and maintained that the words did not refer to the Appellant could not rely on the defence of justification. In any event, the Appellant only admitted to having been charged with fraud but not convicted of the same.
50. I have perused through the Defence dated 16th April 2019 and I note that the Respondent did not at all plead the defence of justification and therefore the trial court was wrong in upholding the Respondent’s testimony on justification.
51. From the foregoing, I find that the Appellant proved that he was defamed by the Respondent the subject Estate’s WhatsApp group, the court is now left to determine the issue of damages.
52. An award of damages in defamation case is discretionary. This was succinctly put by the Court of Appeal in C A M V Royal Media Services Limited Civil Appeal No 283 OF 2005[2013] eKLR when it stated that:
“No case is like the other. In the exercise of discretion to award damages for defamation, the court has wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones V Pollard (1997) EMLR 233-243include objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published and any repetition; subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.”
53. The Appellant (Plaintiff) submitted for a sum of Kshs.5,000,000/= for general damages and Kshs.1,000,000/= as exemplary damages. Counsel for the Appellant cited the following cases:
• Hon. Uhuru Muigai Kenyatta v Baraza Limited (2011) eKLR where Rawal J(as he then was) awarded Kshs.7,000,000/= to the Plaintiff.
• Patrick Nyoike v People Limited (2013) eKLR where Ougo J awarded the Plaintiff Kshs.4,000,000/= general damages and Kshs.100.000/= aggravated damages.
• Ken Odondi & 2 Others v James Okoth Omburah T/A Okoth Omburah & Co. Advocates (2013) eKLR where the Court of Appeal awarded the Appellant Kshs,4,000,000/= general damages for libel and Kshs.500,000/= aggravated damages and
• Abdi Mohamed Farah v Nairobi Star Publication Ltd & Anor (2015) eKLR where the court awarded the Appellant Kshs.3,000,000/= general damages and Kshs.1,00,000/= aggravated damages.
54. The Appellant was said to be an Advocate of the High Court of Kenya, then with twenty-two (22) years post admission experience and who specialized in Commercial Law and Litigation. It is my finding that the Respondent’s conduct to cause publication of the defamatory words caused the Appellant to suffer loss of reputation and to be shunned and held in low esteem by the residents and home owners within Bustani Estate where he lived and resided with his immediate family as a result of which the Appellant suffered loss. After considering the authorities cited by the plaintiff and taking into account the inflation rate and the age of the said cases, I award the plaintiff Kshs.2,000,000/= as general damages as against the Respondent.
55. I will not make any award on exemplary damages because though they were pleaded they were not proved. According to Duncan and Neill on Defamation (2nd Edition, 1983) which was cited with approval in John Versus Mgn Ltd (1996) 2All Er35 At Page 52:-
“Exemplary damages can only be awarded if the plaintiff proves that the defendant when he made the publication knew that he was committing a tort or was reckless whether his action was tortious or not, and decided to publish because the prospects of the material advantage outweighed the prospects of the material loss. What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chance of economic, or perhaps physical, penalty.”
iii. Whether the Respondent is entitled to costs of the suit?
56. On the question of costs of the application, the general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. In Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eKLR. The Supreme Court held that costs follow the event and that the Court has the discretion in awarding such costs.
Disposition.
57. In the end, I will set aside the Judgment and Decree of the Chief Magistrate’s Court at Mavoko Law Courts, delivered on the 6th June 2022 and allow the Appellant’s Claim as follows:
a) The Appellant is awarded Kenya Shillings Three Million (Kshs.3,000.000/=) damages for defamation of character.
b) The Appellant will have the costs of the suit and appeal together with interest at court rates from the date of this judgement till payment in full.
c) There shall be a forty-five (45) days stay of execution.
It is so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 10TH JUNE 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH DECEMBER 2025