REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
CIVIL APPEAL NO. E033 OF 2024
THE NATION MEDIA GROUP………….……..….……1ST DEFENDANT
OUKO OKUSA……………………..…..………………….2ND DEFENDANT
VERSUS
HUMPHREY ODHIAMBO OBACH
T/A H. OBACH & PARTNERS ADVOCATES………….…RESPONDENT
AND CROSS APPEAL
BETWEEN
HUMPHREY ODHIAMBO OBACH
T/A H. OBACH & PARTNERS ADVOCATES……………………………………………………….PLAINTIFF
VERSUS
THE NATION MEDIA GROUP………..…………………1ST DEFENDANT
OUKO OKUSA……………………………………..………2ND DEFENDANT
(Being an Appeal and Cross Appeal from the judgment and Decree of the Senior Resident Magistrate's Court in Homa Bay CMCC No. E040 of 2022 dated 22nd April 2024 by Hon. Joy Shiundu Wesonga, PM)
[1] The appellant herein, the Nation Media Group, was sued before the lower court in Homa Bay Chief Magistrates Civil Case No. E040 of 2024: Humphrey Odhiambo Obach t/a H. Obach & Partners Advocates v The Nation Media Group & another, for general, exemplary and aggravated damages, interest and costs, for defamation of character. The respondent's contention before the lower court was that, on or about the 16th December 2021, the 2nd appellant, being a journalist employed by the 1st appellant, maliciously and without any justifiable cause published of and concerning him and caused to be circulated, a libelous and malicious report which was aired during the 1st appellant’s scheduled Kiswahili 7.00 p.m. and 9.00 p.m. news bulletin the words set out at paragraph 4 of the Plaint dated 2nd March 2022.
[2] It was further averred by the respondent that the said words were meant and understood to mean that he orchestrated, forged documents and proceeded to file fictitious claims against Trans Mara Sugar Company Limited in a bid to defraud the said company of Kshs. 30,000,000/=; and that the respondent is a corrupt individual who is involved in illegal dealings meant to defraud innocent Kenyans, and in particular Trans Mara Sugar Company Limited.
[3] Therefore, the respondent averred that, by reason of the said publication, his character was injured and his credit and reputation brought into public scandal, odium and contempt; hence the lower court suit.
[4] The respondent’s claim was denied by the two appellants vide their Statement of Defence dated 28th April 2022. They denied having maliciously and without any justifiable cause published the words complained of by the respondent. On a without prejudice basis, they averred that the publication was a report of ongoing investigations and was therefore made without any malice whatsoever towards the respondent. The appellants further averred that they made all necessary efforts to reach the respondent to give him a chance to explain himself but the respondent declined to comment on the investigations or put the record straight.
[5] The appellants further denied any or all meanings ascribed to the words allegedly published by them as contained in paragraphs 6 and 7 of the Plaint and put the respondent to strict proof thereof. The 1st respondent contended that its journalists, the 2nd appellant included, are highly trained; and therefore adequate research was conducted and verified before the publication. Accordingly, the appellants prayed for the dismissal of the respondent’s suit with costs.
[6] Having heard the parties and their witnesses, the learned magistrate found the appellants liable to the respondent for libel and entered judgment in his favour in a judgment dated and delivered on 26th April 2024 in the following terms:
[a] General damages for defamation – Kshs. 5,000,000/=
[b] Aggravated and exemplary damages – Kshs. 1,000,000/=
[c] Injunction restraining the appellants and each of them by themselves, their servants or agents or otherwise howsoever from further publishing or causing to be published words defamatory of the plaintiff
[d] Costs of the suit
[e] Interest on [a] and [b] above at court rates.
[7] Being aggrieved by the judgment and decree of the lower court, the appellants filed the instant appeal vide their Memorandum of Appeal dated 22nd May 2024 on the following grounds:
[a] The learned magistrate erred in Law and in fact in failing to exhaustively and/or cumulatively evaluate the evidence on record and thus arrived at an erroneous conclusion that the respondent had been defamed.
[b] The learned magistrate erred in law and in fact in holding that the respondent had proved his case for defamation granted the failure to comply with the mandatory requirement to produce electronic records accompanied by a certificate pursuant to Section 106 (A) and 106 (B) of the Evidence Act.
[c] The learned magistrate erred in law and in fact in failing to consider the evidence of the appellants’ witnesses as well as the appellants’ submissions and arrived at a lopsided judgment in favour of the respondent.
[d] The learned magistrate erred in law and in fact in failing to consider the existence of circumstances that mitigated any award of damages payable to the respondent.
[e] The learned magistrate erred in Law and in fact in failing to appreciate lack of malice on the part of the appellants, when they published what was obtained from and confirmed by their witnesses.
[f] The learned magistrate erred in law in awarding sums in damages which was/is manifestly and/or inordinately high, thus connoting an error in principle, taking into account the pleadings, evidence and all other factors including past decisions of the courts and the current trend of awards.
[g] The learned magistrate erred in law in awarding aggravated and exemplary damages on the basis of the material before her which did not justify such awards.
[h] The entire decision of the learned magistrate was/is against the weight of the evidence on record.
[8] On the basis of the aforestated grounds, the appellants prayed that the judgment and/or decision of the learned magistrate in Homa Bay CMCC No. E040 of 2022 be set aside and/or quashed, and the respondent’s suit in the lower court be dismissed with costs. In the alternative, they prayed that the Court be pleased to review, vary and/or reduce the award on damages to accord with the law and/or relevant decisions. They also prayed for costs of the appeal and those incurred in the subordinate court.
[9] The respondent was likewise aggrieved by the decision of the lower court on quantum. He was of the conviction that he was entitled to a higher award than was given by the learned magistrate. Accordingly, he filed a cross appeal dated 26th June 2024 on the following grounds:
[a] THAT the learned magistrate erred in making an award of Kshs. 6,000,000/= as damages which was manifestly low and inadequate in the circumstances of the case.
[b] THAT the learned magistrate made an award of Kshs. 6,000, 000/= as damages based on incorrect principle and failed to consider comparable awards in similar situations resulting to an award manifestly inadequate.
[c] THAT the learned magistrate failed to consider the permanence of the libel, the conduct of the appellants both before, during and after trial thereby arriving at an inadequate award.
[d] THAT the learned magistrate erred in setting out in extenso very persuasive authorities without applying the principles enumerated in those cases thereby arriving at an inadequate award.
[10] Accordingly, the respondent prayed that the Court be pleased to review and increase the award on damages to accord with relevant decisions; and that the costs of the appeal, including the cross appeal be awarded to him.
[11] The appeal and cross appeal were canvassed by way of written submissions, pursuant to the directions given herein on 7th October 2025. The submissions were highlighted on 23rd February 2026. Thus, the appellants relied on their written submissions dated 14th February 2026 in which they reiterated the factual basis of the appeal as well as the submissions made by them before the lower court. In respect of Grounds 1, 2, 3, 5 and 8, the appellants submitted that this case arose out of a news item aired via electronic media, namely television (NTV), and the social media platform known as YouTube; and therefore it is a defamation case where the respondent relied on electronic evidence. They argued therefore that it was a mandatory requirement for the respondent to produce the electronic records accompanied by a certificate of electronic evidence as provided in Sections 78A and 106B of the Evidence Act, Cap. 80 of the Laws of Kenya.
[12] The appellants urged the Court to note that, in the instant case, no direct evidence was presented and no evidence was adduced as to who transcribed the words complained of. In addition, no certificate of electronic evidence was produced as the law requires. They relied on Idris Abdi Abdullahi v Ahmed Bashane & 2 Others [2018] eKLR to underscore their submission that when assessing the weight to be given to electronic or digital evidence the court must consider several factors, including how the evidence was generated, stored, or transmitted; the measures taken to preserve its integrity; and how the originator of the evidence was identified, among others.
[13] The appellants also relied on Bhavna Patel Mandaliya v Chetan Aroon Solanki [2021] eKLR and John Lokitare Lodinyo v I E B C And 2 Others [2018] eKLR in which it was similarly stated that the certificate envisaged in Section 106B(4) must be produced where it is intended to present electronic records as evidence. In their submission this mandatory provision was enacted for good reason, namely, to verify the authenticity and integrity of the electronic evidence sought to be adduced, as such evidence can otherwise be manipulated.
[14] In the appellants’ submission, the learned magistrate neither gave any consideration to the fact that the electronic evidence from which the words complained of were derived was not produced and/or played to the court to verify the words allegedly aired on television, nor to the fact that no evidence was adduced as to who transcribed the words. In their view, therefore, there is no way of confirming that the words complained of were actually as set out in paragraph 4 of the Plaint; and therefore the learned magistrate was grossly in error in not addressing her mind to this aspect of the respondent’s case.
[15] The appellants also pointed out that the alleged report as set out in the Plaint, had several ellipses indicating that some words had been omitted from the quoted text. They took issue with the fact that the learned magistrate failed to evaluate this point and particularly that the sentence or intended sentences in the second paragraph made no sense without the omitted words. They argued that, without watching a replay of the television clip and/or in the absence of a certificate of electronic evidence, the court was not in a position to establish the accuracy of the words complained of. The appellants made reference to the decision of the Court of Appeal in Raphael Lukale v Elizabeth Mayabi & Another [2018] eKLR in which the Court of Appeal restated that all the law requires is that the plaintiff must try as much as possible to reproduce the words used in a defamation claim.
[16] Further to the foregoing, the appellants submitted that while libel is actionable per se, it was still essential that the requisite elements of the tort be established by the respondent. In their submission this burden was not discharged. In particular, the respondents submitted that the elements of malice and falsity of the report were never proved. In addition, the appellants submitted that the respondent needed to show that the words pleaded at paragraph 4 of the Plaint convey, in their ordinary meaning, the particulars set out at paragraph 14 (a - j) of the Plaint. Accordingly, they posited that the respondent did not demonstrate that the words complained of tended to bring him into odium or lowered his reputation in the estimation of ordinary and right-thinking members of society, as alleged. He is therefore not entitled to any damages.
[17] To underscore the foregoing arguments, the petitioners relied on Jakoyo Midiwo v Nation Media Group Limited & another [2018] eKLR where the Court of Appeal held that the burden of proving that the impugned article was “of and concerning the plaintiff” rested with the plaintiff. They urged the Court to find that the respondent failed to prove his case to the requisite standard.
[18] In respect of Grounds 4, 6 and 7 and the cross appeal, the appellants submitted that, should the Court find that the publication in question was false and amounted to defamation, it should then consider whether the respondent proved any harm suffered by himself in the eyes of the public to warrant an award in damages. They argued that, although the respondent claimed to have lost clients and had to close his practice, and further that his political aspirations were thwarted, no evidence was adduced by him to link these events to the impugned publication. For instance, they made reference to the evidence of PW2 who admitted in cross-examination that there was nothing to confirm that people failed to vote for the respondent due to the publication. They also referred to the evidence of PW3 who testified that was not even aware of the case that was filed at Rongo Magistrate’s Court.
[19] In terms of quantum, the appellants submitted that recent decisions indicate that the courts have scaled down large awards and emphasized that harm or injury to reputation must be clearly proved. They submitted therefore that, since the respondent tendered no evidence of actual harm, the circumstances warrant only nominal damages of not more than Kshs. 200,000/=. They backed their proposal by citing the case of Jacob Kipngetich Katonon v Nation Media Group Limited [2017] eKLR and Selina Patani & Another v Dhiranji v Patani [2019] eKLR, among others.
[20] Hence, the appellants urged the Court to find that, the respondent having failed to discharge the burden of proving his case on a balance of probabilities, the cross appeal is for dismissal with costs. On the other hand, they prayed that their appeal be allowed with costs. In particular, they prayed that:
[a] The judgment of the learned magistrate in Homa Bay CMCC No. E040 of 2022 be set aside and the respondent’s suit in the lower court be dismissed with costs;
[b] In the alternative, the Court be pleased to review, vary and/or reduce the award on damages to accord with the law and/or relevant decisions; and
[c] The costs of the appeal, the cross-appeal, and those incurred in the subordinate court be borne by the respondent.
[21] On his part, the respondent relied on his written submissions dated 16th February 2026. He provided a brief background of the appeal and pointed out that, on the 26th June 2024 he filed a Memorandum of Cross Appeal seeking enhancement of damages on grounds of manifest inadequacy of the lower court’s award. He accordingly proposed the following issues for determination:
[a] Whether the appellants defamed him and if so, whether their appeal lacks merit.
[b] Whether the damages in the sum of Kshs. 5,000,000/= is manifestly low.
[c] Whether the aggravated and exemplary damages in the sum of Kshs. 1,000.000/= is manifestly low.
[22] The respondent submitted urged the Court to note that, in their defence, the appellants admitted that the publication was made, but justified the said publication on the ground of public interest. He accordingly pointed that the alleged investigations were incomplete and no charge had been preferred against the respondent at the time of the reporting; and therefore the trial court correctly adopted the principles in Patani & Another v Patani (Civil Appeal 114 of 2017) [2019] KECA 480 (KLR) (19 July 2019) (Judgment) in arriving at its decision. With reference to S M W v Z V M [2015] eKLR, the respondent submitted that in determining whether the words used are defamatory, the court need only look at the words complained of in their natural and ordinary meaning.
[23] In response to the appellants’ arguments as to non-compliance with Sections 106A and 106B of the Evidence Act, the respondent submitted that the publication was expressly admitted by the appellant’s own witness at pages 36 and 37 of the Record of Appeal; and therefore technical objections to certification ought not to be entertained as to do so would override substantive justice. The respondent further submitted that malice was properly inferred against the appellants. He urged the Court to consider that, as an Advocate, and a political aspirant he was held in high esteem by his peers and members of the society; which esteem was adversely affected by the publication.
[24] According to the respondent, at no point did the appellants contact him with a view of establishing the truth or otherwise of the report; and therefore he submitted that the learned magistrate correctly inferred malice from the appellants’ failure to verify. He relied on Godwin Waivjiku Wachira v Okoth [1977] KLR 24 and Phinehas Ivyaga Vs Gitobu Imanyara [2013] eKLR. In the premises, the respondent urged for the dismissal of the appeal with costs.
[25] In respect of his cross appeal, the respondent submitted that the sum of Kshs. 5,000,000/= was manifestly low. He relied on Butt v Khan [1978] KECA 24 (KLR) regarding the applicable principles for interfering with the discretion of the lower court on award of damages and the case of Brigadier Arthur Ndoj Owuor v Standard Limited [2011] eKLR for the proposition that monetary damage can never be adequate compensation for lost reputation.
[26] He urged the Court to take into consideration the checklist for compensable factors as set out by the Court of Appeal in Johnson Evans Gicheru v Andrew Morton [2005] eKLR, Nation Newspapers Limited v Peter Barasa Rabando [2016] eKLR, Samuel Ndungu Mukunya vs Nation Media Group & another [2016] eKLR, and Alnashir Visram v Standard Limited [2016] eKLR which authorities, in his submission, demonstrate that awards for defamatory publications against professionals, especially advocates, ordinarily exceed Kshs. 18 million. On that basis he urged the Court to enhance the amount awardable to him under the head of general damages.
[27] The respondent also impugned the decision of the lower court in awarding him the sum of Kshs. 1,000,000/= under the head of aggravated and exemplary damages. His submission was that the said amount is manifestly low. He made reference to paragraph 243 of Halsbury's Laws of England as cited in Nairobi Star Publication Limited v Elizabeth Atieno Oyoo [2018] eKLR, as well as the case of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR, among others, to buttress his submission that in his case the appellants acted out of improper motive and therefore the award of a reasonable amount as exemplary damages was warranted. He added that the same ought to be enhanced granted the failure by the appellants to publish an appropriate apology.
[28] In the premises, the respondent urged the Court to dismiss the appeal with costs and instead allow the cross appeal with costs. He proposed that the awards be enhanced as follows:
[a] General damages – Not less than Kshs. 18,000,000/=
[b] Aggravated/exemplary damages – Kshs. 4,000,000/=
[29] This being a first appeal, I am mindful that it is the duty of the Court to review the evidence adduced before the lower court with a view of satisfying itself that the decision was well-founded; while giving allowance for the fact that I did not have the advantage of seeing or hearing the witnesses. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was expressed as follows:
"...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] By way of evidence, the respondent testified as PW1 and adopted his witness statement dated 2nd March 2022. His evidence was that on or about the 16th December 2021 the appellants published or caused to be published defamatory allegations about him during its 7.00 p.m. and 9 p.m. news bulletin in the following words:
“Huenda Kampunì moja ya kibinafsi sukari kule Nyanza ikakumbwa na sakata kubwa ya mamilioni ya pesa kutokana na ripoti ya kundi za wakili kubuni stakabadhi za fidia kwa wakulima wa miwa kisha kufunguakesi mahakamani kulingana na stakabahi za kampuni ya Sukari ya Trans Mara NTV inaripoti kwamba huenda Shilingi Milioni 30 zikaingia mfukoni mawakili walaghai kulingana na kesi zilizo kortini Ouko Okusa anatupa mengi…Hawa ni wachache tu kati ya mamia ya wakulima wa miwa wa Kisii, Migori na TransMara ambao wamepigwa na butwa baada ya kugundua kuwa Mawakili kadhaa wametumia majina yao na stakabaadhi gushi kushtaki kampuni ya sukari ya Trans Mara ili walipwe fidia. Kesi zinazohusu miwa ínayodaiwa kupelekwa kampuni hii bila malipo. Kinachoshangaza Zaidi ni baadhi ya stakabadhi zilizotumiwa mahakamani ni za watu walioaaga duniani miaka mingi iliyopita kwa mfano kesi hii ya Babake Zedekia Ongubo... Wakili wa Homabay H Obach wanafuata…wanatajwa kwa sakata hii. Tayari wakulima hawa wamepiga ripoti kwa polisi kuzuia majina yao kutumika kulaghai”
[31] The respondent testified that the publication caused him to lose respect amongst his peers both in the professional and political realms as well as the moral standing he enjoyed as a member of the society. He explained that his professional career as an Advocate of the High Court of Kenya was negatively affected after the appellants, by their publication, labelled him a member of a corrupt group of advocates forging documents for personal gain, at the detriment of innocent citizens of the country. He added that the mere insinuation through the appellants’ publication that he was a member of the group of advocates who defrauded innocent members of the society resulted not only in loss of important clients but also loss of respect from his political peers and supporters.
[32] It was further the evidence of the respondent that the publication complained of was malicious and calculated to injure, disparage and lower the esteem with which right-thinking members of the society in general regarded and held him; and as such caused him mental anguish, psychological torture, distress and embarrassment. He added that the 2nd appellant, being a trained journalist, ought to have endeavored to verify the information from the relevant court registries before publication or at least reach out to him (the respondent) for his comments. In his evidence, the appellants did neither.
[33] The respondent called two witnesses to support his evidence, namely, Simeon Kwach (PW2) and Franklin Okeyo (PW3). PW2 adopted his witness statement dated 2nd March 2022. His evidence was that around December rumours started going round town that the respondent was a devious person who, as an Advocate of the High Court, had defrauded innocent citizens and ensured the downfall of Trans Mara Sugar Company. PW2 further stated that the rumours started circulating after a publication was made by the appellants on 16th December 2021 during their 7.00 p.m. and 9.00 p.m. news bulletin and continued to be circulated through various social media platforms.
[34] PW2 further stated that the publication had affected the respondent’s political campaigns and had significantly reduced the respect and good image that the respondent had in the society, particularly amongst his supporters in his constituency, with the effect that the number of his supporters and followers dwindled.
[35] PW3, an employee of the respondent, also adopted his witness statement dated 2nd March 2022 as his evidence in chief. He testified that, sometime in December, rumours started going around among employees and the clients of the respondent that the respondent had orchestrated false and malicious suits against Trans Mara Sugar Company with a view of defrauding them of millions of money and that the company had closed down as a result. It was further the evidence of PW3 that the rumours were sparked by a report published and aired by the appellants on 16th December 2021. PW3 testified that some of the respondent’s clients scaled down their operations with the respondent’s office due to the allegations. He therefore asserted that the respondent lost the name and goodwill he had before in several towns in Kenya, especially in the County of Homa Bay.
[36] The defence side also relied on the evidence of three witnesses, the first witness being the 2nd appellant, Ouko Okusah (DW1). He stated that sometime in the month of December 2021, he got a tip off from a private investigator hired by the management of Trans Mara Sugar Company to probe claims of fraud raised by a number of cane farmers in Migori and Kisii. He explained that the farmers were accusing lawyers operating within South Nyanza region of filing fictitious lawsuits on their behalf against the company.
[37] DW1 further testified that, according to the source, the cases filed against the miller were mostly about unharvested cane and non-payment for cane delivered; and that the company estimated the total amount of the fraudulent claims to be in the region of Kshs. 30,000,000/=. It was further the evidence of DW1 that his source showed him police OB numbers and statements signed by the farmers concerned in which they distanced themselves from the court cases as well as affidavits and unsigned court summons prepared by the lawyers in question.
[38] It was the testimony of DW1 that, convinced that there was something going on worth reporting, he travelled to Trans Mara, Migori and Kisii to meet with the farmers. He added that he also spoke with the legal officer of Trans Mara Sugar Company who confirmed that the company was facing more than 1,000 lawsuits, the majority of which were fraudulent.
[39] DW1 further told the lower court that, after gathering information from the farmers and the company, he set out to look for the advocates mentioned and got comments from most of them except the respondent, whose telephone number he was unable to find. He added that he withheld the story for about 1 week as he endeavoured to get hold of the respondent in vain.
[40] DW1 conceded that he published the article complained of and added that he had evidence to back it up. He also conceded in cross-examination that the story was uploaded on the 1st appellant’s YouTube channel. It was further the contention of DW1 that his stories are voiced over and not in print form; and therefore the words set out in paragraph 4 of the Plaint were not his.
[41] By way of verification, DW1 testified that he met a farmer who had filed a report to the police against the respondent and obtained documents from him to confirm the truthfulness of the report. He also mentioned that, together with the farmer, they went to the police station and perused the Occurrence Book which contained his particular report and got to learn that the investigation was ongoing. DW1 testified that, his obligation as a journalist, was to publish the farmers’ stories because there was enough evidence to support such a report.
[42] DW2 was C I Justus Kiboi, the OCS of Nyamarambe Police Station. He produced the OB extract for entry No. 16/4/9/2020 in respect of a report made by Zedekiah Nyokangi Onkuba, Samwel Kenyando and Auge Mwathe. He testified that Samuel Kenyando filed a complaint against the filing of Rongo Magistrates Civil Case No. 96 of 2019 on his behalf without instructions. He added that the complainants position was that they were not aware of the civil cases filed in court on their behalf.
[43] Samwel Kenyando (DW3) also testified before the lower court as a defence witness. He adopted his witness statement dated 4th September 2020 and testified that the respondent was not a person known to him. He denied having instructed the respondent to file a civil case on his behalf at Rongo Law Courts against Trans Mara Sugar Company. He confirmed that he filed a complaint at Nyamarambe Police Station in respect of the respondent’s conduct.
[44] Having given due consideration to the lower court record, and in particular, the Judgment, the Grounds of Appeal as well as the written submissions filed herein, the issues for determination are as follows:
[a] Whether the respondent proved his case before the lower court to the requisite standard;
[b] Whether the learned magistrate committed an error of principle in making the awards she made.
[a] Whether the Respondent proved his case to the requisite standard:
[45] In Black’s Law Dictionary “defamation” is defined as:
1.The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault.
2. A false written or oral statement that damages another's reputation.
[46] A similar definition appears in Winfield on Tort, 8th Edition at page 254, in which defamation is defined to be:
"...the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person..."
[47] Hence, in the case of Miguna Miguna v Standard Group Limited, The Standard Limited, James Smart, Cyrus Ombati & Kenya Television Network (KTN) (Civil Appeal 164 of 2016 [2017] KECA 365 (KLR) (Civ) (28 July 2017) (Judgment), the Court of Appeal relied the following passage from the Common Law Series: The law of Tort at paragraph 25:
“The law of defa
[...truncated]
IN THE HIGH COURT OF KENYA
AT HOMA BAY
CIVIL APPEAL NO. E033 OF 2024
THE NATION MEDIA GROUP………….……..….……1ST DEFENDANT
OUKO OKUSA……………………..…..………………….2ND DEFENDANT
VERSUS
HUMPHREY ODHIAMBO OBACH
T/A H. OBACH & PARTNERS ADVOCATES………….…RESPONDENT
AND CROSS APPEAL
BETWEEN
HUMPHREY ODHIAMBO OBACH
T/A H. OBACH & PARTNERS ADVOCATES……………………………………………………….PLAINTIFF
VERSUS
THE NATION MEDIA GROUP………..…………………1ST DEFENDANT
OUKO OKUSA……………………………………..………2ND DEFENDANT
(Being an Appeal and Cross Appeal from the judgment and Decree of the Senior Resident Magistrate's Court in Homa Bay CMCC No. E040 of 2022 dated 22nd April 2024 by Hon. Joy Shiundu Wesonga, PM)
[1] The appellant herein, the Nation Media Group, was sued before the lower court in Homa Bay Chief Magistrates Civil Case No. E040 of 2024: Humphrey Odhiambo Obach t/a H. Obach & Partners Advocates v The Nation Media Group & another, for general, exemplary and aggravated damages, interest and costs, for defamation of character. The respondent's contention before the lower court was that, on or about the 16th December 2021, the 2nd appellant, being a journalist employed by the 1st appellant, maliciously and without any justifiable cause published of and concerning him and caused to be circulated, a libelous and malicious report which was aired during the 1st appellant’s scheduled Kiswahili 7.00 p.m. and 9.00 p.m. news bulletin the words set out at paragraph 4 of the Plaint dated 2nd March 2022.
[2] It was further averred by the respondent that the said words were meant and understood to mean that he orchestrated, forged documents and proceeded to file fictitious claims against Trans Mara Sugar Company Limited in a bid to defraud the said company of Kshs. 30,000,000/=; and that the respondent is a corrupt individual who is involved in illegal dealings meant to defraud innocent Kenyans, and in particular Trans Mara Sugar Company Limited.
[3] Therefore, the respondent averred that, by reason of the said publication, his character was injured and his credit and reputation brought into public scandal, odium and contempt; hence the lower court suit.
[4] The respondent’s claim was denied by the two appellants vide their Statement of Defence dated 28th April 2022. They denied having maliciously and without any justifiable cause published the words complained of by the respondent. On a without prejudice basis, they averred that the publication was a report of ongoing investigations and was therefore made without any malice whatsoever towards the respondent. The appellants further averred that they made all necessary efforts to reach the respondent to give him a chance to explain himself but the respondent declined to comment on the investigations or put the record straight.
[5] The appellants further denied any or all meanings ascribed to the words allegedly published by them as contained in paragraphs 6 and 7 of the Plaint and put the respondent to strict proof thereof. The 1st respondent contended that its journalists, the 2nd appellant included, are highly trained; and therefore adequate research was conducted and verified before the publication. Accordingly, the appellants prayed for the dismissal of the respondent’s suit with costs.
[6] Having heard the parties and their witnesses, the learned magistrate found the appellants liable to the respondent for libel and entered judgment in his favour in a judgment dated and delivered on 26th April 2024 in the following terms:
[a] General damages for defamation – Kshs. 5,000,000/=
[b] Aggravated and exemplary damages – Kshs. 1,000,000/=
[c] Injunction restraining the appellants and each of them by themselves, their servants or agents or otherwise howsoever from further publishing or causing to be published words defamatory of the plaintiff
[d] Costs of the suit
[e] Interest on [a] and [b] above at court rates.
[7] Being aggrieved by the judgment and decree of the lower court, the appellants filed the instant appeal vide their Memorandum of Appeal dated 22nd May 2024 on the following grounds:
[a] The learned magistrate erred in Law and in fact in failing to exhaustively and/or cumulatively evaluate the evidence on record and thus arrived at an erroneous conclusion that the respondent had been defamed.
[b] The learned magistrate erred in law and in fact in holding that the respondent had proved his case for defamation granted the failure to comply with the mandatory requirement to produce electronic records accompanied by a certificate pursuant to Section 106 (A) and 106 (B) of the Evidence Act.
[c] The learned magistrate erred in law and in fact in failing to consider the evidence of the appellants’ witnesses as well as the appellants’ submissions and arrived at a lopsided judgment in favour of the respondent.
[d] The learned magistrate erred in law and in fact in failing to consider the existence of circumstances that mitigated any award of damages payable to the respondent.
[e] The learned magistrate erred in Law and in fact in failing to appreciate lack of malice on the part of the appellants, when they published what was obtained from and confirmed by their witnesses.
[f] The learned magistrate erred in law in awarding sums in damages which was/is manifestly and/or inordinately high, thus connoting an error in principle, taking into account the pleadings, evidence and all other factors including past decisions of the courts and the current trend of awards.
[g] The learned magistrate erred in law in awarding aggravated and exemplary damages on the basis of the material before her which did not justify such awards.
[h] The entire decision of the learned magistrate was/is against the weight of the evidence on record.
[8] On the basis of the aforestated grounds, the appellants prayed that the judgment and/or decision of the learned magistrate in Homa Bay CMCC No. E040 of 2022 be set aside and/or quashed, and the respondent’s suit in the lower court be dismissed with costs. In the alternative, they prayed that the Court be pleased to review, vary and/or reduce the award on damages to accord with the law and/or relevant decisions. They also prayed for costs of the appeal and those incurred in the subordinate court.
[9] The respondent was likewise aggrieved by the decision of the lower court on quantum. He was of the conviction that he was entitled to a higher award than was given by the learned magistrate. Accordingly, he filed a cross appeal dated 26th June 2024 on the following grounds:
[a] THAT the learned magistrate erred in making an award of Kshs. 6,000,000/= as damages which was manifestly low and inadequate in the circumstances of the case.
[b] THAT the learned magistrate made an award of Kshs. 6,000, 000/= as damages based on incorrect principle and failed to consider comparable awards in similar situations resulting to an award manifestly inadequate.
[c] THAT the learned magistrate failed to consider the permanence of the libel, the conduct of the appellants both before, during and after trial thereby arriving at an inadequate award.
[d] THAT the learned magistrate erred in setting out in extenso very persuasive authorities without applying the principles enumerated in those cases thereby arriving at an inadequate award.
[10] Accordingly, the respondent prayed that the Court be pleased to review and increase the award on damages to accord with relevant decisions; and that the costs of the appeal, including the cross appeal be awarded to him.
[11] The appeal and cross appeal were canvassed by way of written submissions, pursuant to the directions given herein on 7th October 2025. The submissions were highlighted on 23rd February 2026. Thus, the appellants relied on their written submissions dated 14th February 2026 in which they reiterated the factual basis of the appeal as well as the submissions made by them before the lower court. In respect of Grounds 1, 2, 3, 5 and 8, the appellants submitted that this case arose out of a news item aired via electronic media, namely television (NTV), and the social media platform known as YouTube; and therefore it is a defamation case where the respondent relied on electronic evidence. They argued therefore that it was a mandatory requirement for the respondent to produce the electronic records accompanied by a certificate of electronic evidence as provided in Sections 78A and 106B of the Evidence Act, Cap. 80 of the Laws of Kenya.
[12] The appellants urged the Court to note that, in the instant case, no direct evidence was presented and no evidence was adduced as to who transcribed the words complained of. In addition, no certificate of electronic evidence was produced as the law requires. They relied on Idris Abdi Abdullahi v Ahmed Bashane & 2 Others [2018] eKLR to underscore their submission that when assessing the weight to be given to electronic or digital evidence the court must consider several factors, including how the evidence was generated, stored, or transmitted; the measures taken to preserve its integrity; and how the originator of the evidence was identified, among others.
[13] The appellants also relied on Bhavna Patel Mandaliya v Chetan Aroon Solanki [2021] eKLR and John Lokitare Lodinyo v I E B C And 2 Others [2018] eKLR in which it was similarly stated that the certificate envisaged in Section 106B(4) must be produced where it is intended to present electronic records as evidence. In their submission this mandatory provision was enacted for good reason, namely, to verify the authenticity and integrity of the electronic evidence sought to be adduced, as such evidence can otherwise be manipulated.
[14] In the appellants’ submission, the learned magistrate neither gave any consideration to the fact that the electronic evidence from which the words complained of were derived was not produced and/or played to the court to verify the words allegedly aired on television, nor to the fact that no evidence was adduced as to who transcribed the words. In their view, therefore, there is no way of confirming that the words complained of were actually as set out in paragraph 4 of the Plaint; and therefore the learned magistrate was grossly in error in not addressing her mind to this aspect of the respondent’s case.
[15] The appellants also pointed out that the alleged report as set out in the Plaint, had several ellipses indicating that some words had been omitted from the quoted text. They took issue with the fact that the learned magistrate failed to evaluate this point and particularly that the sentence or intended sentences in the second paragraph made no sense without the omitted words. They argued that, without watching a replay of the television clip and/or in the absence of a certificate of electronic evidence, the court was not in a position to establish the accuracy of the words complained of. The appellants made reference to the decision of the Court of Appeal in Raphael Lukale v Elizabeth Mayabi & Another [2018] eKLR in which the Court of Appeal restated that all the law requires is that the plaintiff must try as much as possible to reproduce the words used in a defamation claim.
[16] Further to the foregoing, the appellants submitted that while libel is actionable per se, it was still essential that the requisite elements of the tort be established by the respondent. In their submission this burden was not discharged. In particular, the respondents submitted that the elements of malice and falsity of the report were never proved. In addition, the appellants submitted that the respondent needed to show that the words pleaded at paragraph 4 of the Plaint convey, in their ordinary meaning, the particulars set out at paragraph 14 (a - j) of the Plaint. Accordingly, they posited that the respondent did not demonstrate that the words complained of tended to bring him into odium or lowered his reputation in the estimation of ordinary and right-thinking members of society, as alleged. He is therefore not entitled to any damages.
[17] To underscore the foregoing arguments, the petitioners relied on Jakoyo Midiwo v Nation Media Group Limited & another [2018] eKLR where the Court of Appeal held that the burden of proving that the impugned article was “of and concerning the plaintiff” rested with the plaintiff. They urged the Court to find that the respondent failed to prove his case to the requisite standard.
[18] In respect of Grounds 4, 6 and 7 and the cross appeal, the appellants submitted that, should the Court find that the publication in question was false and amounted to defamation, it should then consider whether the respondent proved any harm suffered by himself in the eyes of the public to warrant an award in damages. They argued that, although the respondent claimed to have lost clients and had to close his practice, and further that his political aspirations were thwarted, no evidence was adduced by him to link these events to the impugned publication. For instance, they made reference to the evidence of PW2 who admitted in cross-examination that there was nothing to confirm that people failed to vote for the respondent due to the publication. They also referred to the evidence of PW3 who testified that was not even aware of the case that was filed at Rongo Magistrate’s Court.
[19] In terms of quantum, the appellants submitted that recent decisions indicate that the courts have scaled down large awards and emphasized that harm or injury to reputation must be clearly proved. They submitted therefore that, since the respondent tendered no evidence of actual harm, the circumstances warrant only nominal damages of not more than Kshs. 200,000/=. They backed their proposal by citing the case of Jacob Kipngetich Katonon v Nation Media Group Limited [2017] eKLR and Selina Patani & Another v Dhiranji v Patani [2019] eKLR, among others.
[20] Hence, the appellants urged the Court to find that, the respondent having failed to discharge the burden of proving his case on a balance of probabilities, the cross appeal is for dismissal with costs. On the other hand, they prayed that their appeal be allowed with costs. In particular, they prayed that:
[a] The judgment of the learned magistrate in Homa Bay CMCC No. E040 of 2022 be set aside and the respondent’s suit in the lower court be dismissed with costs;
[b] In the alternative, the Court be pleased to review, vary and/or reduce the award on damages to accord with the law and/or relevant decisions; and
[c] The costs of the appeal, the cross-appeal, and those incurred in the subordinate court be borne by the respondent.
[21] On his part, the respondent relied on his written submissions dated 16th February 2026. He provided a brief background of the appeal and pointed out that, on the 26th June 2024 he filed a Memorandum of Cross Appeal seeking enhancement of damages on grounds of manifest inadequacy of the lower court’s award. He accordingly proposed the following issues for determination:
[a] Whether the appellants defamed him and if so, whether their appeal lacks merit.
[b] Whether the damages in the sum of Kshs. 5,000,000/= is manifestly low.
[c] Whether the aggravated and exemplary damages in the sum of Kshs. 1,000.000/= is manifestly low.
[22] The respondent submitted urged the Court to note that, in their defence, the appellants admitted that the publication was made, but justified the said publication on the ground of public interest. He accordingly pointed that the alleged investigations were incomplete and no charge had been preferred against the respondent at the time of the reporting; and therefore the trial court correctly adopted the principles in Patani & Another v Patani (Civil Appeal 114 of 2017) [2019] KECA 480 (KLR) (19 July 2019) (Judgment) in arriving at its decision. With reference to S M W v Z V M [2015] eKLR, the respondent submitted that in determining whether the words used are defamatory, the court need only look at the words complained of in their natural and ordinary meaning.
[23] In response to the appellants’ arguments as to non-compliance with Sections 106A and 106B of the Evidence Act, the respondent submitted that the publication was expressly admitted by the appellant’s own witness at pages 36 and 37 of the Record of Appeal; and therefore technical objections to certification ought not to be entertained as to do so would override substantive justice. The respondent further submitted that malice was properly inferred against the appellants. He urged the Court to consider that, as an Advocate, and a political aspirant he was held in high esteem by his peers and members of the society; which esteem was adversely affected by the publication.
[24] According to the respondent, at no point did the appellants contact him with a view of establishing the truth or otherwise of the report; and therefore he submitted that the learned magistrate correctly inferred malice from the appellants’ failure to verify. He relied on Godwin Waivjiku Wachira v Okoth [1977] KLR 24 and Phinehas Ivyaga Vs Gitobu Imanyara [2013] eKLR. In the premises, the respondent urged for the dismissal of the appeal with costs.
[25] In respect of his cross appeal, the respondent submitted that the sum of Kshs. 5,000,000/= was manifestly low. He relied on Butt v Khan [1978] KECA 24 (KLR) regarding the applicable principles for interfering with the discretion of the lower court on award of damages and the case of Brigadier Arthur Ndoj Owuor v Standard Limited [2011] eKLR for the proposition that monetary damage can never be adequate compensation for lost reputation.
[26] He urged the Court to take into consideration the checklist for compensable factors as set out by the Court of Appeal in Johnson Evans Gicheru v Andrew Morton [2005] eKLR, Nation Newspapers Limited v Peter Barasa Rabando [2016] eKLR, Samuel Ndungu Mukunya vs Nation Media Group & another [2016] eKLR, and Alnashir Visram v Standard Limited [2016] eKLR which authorities, in his submission, demonstrate that awards for defamatory publications against professionals, especially advocates, ordinarily exceed Kshs. 18 million. On that basis he urged the Court to enhance the amount awardable to him under the head of general damages.
[27] The respondent also impugned the decision of the lower court in awarding him the sum of Kshs. 1,000,000/= under the head of aggravated and exemplary damages. His submission was that the said amount is manifestly low. He made reference to paragraph 243 of Halsbury's Laws of England as cited in Nairobi Star Publication Limited v Elizabeth Atieno Oyoo [2018] eKLR, as well as the case of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR, among others, to buttress his submission that in his case the appellants acted out of improper motive and therefore the award of a reasonable amount as exemplary damages was warranted. He added that the same ought to be enhanced granted the failure by the appellants to publish an appropriate apology.
[28] In the premises, the respondent urged the Court to dismiss the appeal with costs and instead allow the cross appeal with costs. He proposed that the awards be enhanced as follows:
[a] General damages – Not less than Kshs. 18,000,000/=
[b] Aggravated/exemplary damages – Kshs. 4,000,000/=
[29] This being a first appeal, I am mindful that it is the duty of the Court to review the evidence adduced before the lower court with a view of satisfying itself that the decision was well-founded; while giving allowance for the fact that I did not have the advantage of seeing or hearing the witnesses. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was expressed as follows:
"...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] By way of evidence, the respondent testified as PW1 and adopted his witness statement dated 2nd March 2022. His evidence was that on or about the 16th December 2021 the appellants published or caused to be published defamatory allegations about him during its 7.00 p.m. and 9 p.m. news bulletin in the following words:
“Huenda Kampunì moja ya kibinafsi sukari kule Nyanza ikakumbwa na sakata kubwa ya mamilioni ya pesa kutokana na ripoti ya kundi za wakili kubuni stakabadhi za fidia kwa wakulima wa miwa kisha kufunguakesi mahakamani kulingana na stakabahi za kampuni ya Sukari ya Trans Mara NTV inaripoti kwamba huenda Shilingi Milioni 30 zikaingia mfukoni mawakili walaghai kulingana na kesi zilizo kortini Ouko Okusa anatupa mengi…Hawa ni wachache tu kati ya mamia ya wakulima wa miwa wa Kisii, Migori na TransMara ambao wamepigwa na butwa baada ya kugundua kuwa Mawakili kadhaa wametumia majina yao na stakabaadhi gushi kushtaki kampuni ya sukari ya Trans Mara ili walipwe fidia. Kesi zinazohusu miwa ínayodaiwa kupelekwa kampuni hii bila malipo. Kinachoshangaza Zaidi ni baadhi ya stakabadhi zilizotumiwa mahakamani ni za watu walioaaga duniani miaka mingi iliyopita kwa mfano kesi hii ya Babake Zedekia Ongubo... Wakili wa Homabay H Obach wanafuata…wanatajwa kwa sakata hii. Tayari wakulima hawa wamepiga ripoti kwa polisi kuzuia majina yao kutumika kulaghai”
[31] The respondent testified that the publication caused him to lose respect amongst his peers both in the professional and political realms as well as the moral standing he enjoyed as a member of the society. He explained that his professional career as an Advocate of the High Court of Kenya was negatively affected after the appellants, by their publication, labelled him a member of a corrupt group of advocates forging documents for personal gain, at the detriment of innocent citizens of the country. He added that the mere insinuation through the appellants’ publication that he was a member of the group of advocates who defrauded innocent members of the society resulted not only in loss of important clients but also loss of respect from his political peers and supporters.
[32] It was further the evidence of the respondent that the publication complained of was malicious and calculated to injure, disparage and lower the esteem with which right-thinking members of the society in general regarded and held him; and as such caused him mental anguish, psychological torture, distress and embarrassment. He added that the 2nd appellant, being a trained journalist, ought to have endeavored to verify the information from the relevant court registries before publication or at least reach out to him (the respondent) for his comments. In his evidence, the appellants did neither.
[33] The respondent called two witnesses to support his evidence, namely, Simeon Kwach (PW2) and Franklin Okeyo (PW3). PW2 adopted his witness statement dated 2nd March 2022. His evidence was that around December rumours started going round town that the respondent was a devious person who, as an Advocate of the High Court, had defrauded innocent citizens and ensured the downfall of Trans Mara Sugar Company. PW2 further stated that the rumours started circulating after a publication was made by the appellants on 16th December 2021 during their 7.00 p.m. and 9.00 p.m. news bulletin and continued to be circulated through various social media platforms.
[34] PW2 further stated that the publication had affected the respondent’s political campaigns and had significantly reduced the respect and good image that the respondent had in the society, particularly amongst his supporters in his constituency, with the effect that the number of his supporters and followers dwindled.
[35] PW3, an employee of the respondent, also adopted his witness statement dated 2nd March 2022 as his evidence in chief. He testified that, sometime in December, rumours started going around among employees and the clients of the respondent that the respondent had orchestrated false and malicious suits against Trans Mara Sugar Company with a view of defrauding them of millions of money and that the company had closed down as a result. It was further the evidence of PW3 that the rumours were sparked by a report published and aired by the appellants on 16th December 2021. PW3 testified that some of the respondent’s clients scaled down their operations with the respondent’s office due to the allegations. He therefore asserted that the respondent lost the name and goodwill he had before in several towns in Kenya, especially in the County of Homa Bay.
[36] The defence side also relied on the evidence of three witnesses, the first witness being the 2nd appellant, Ouko Okusah (DW1). He stated that sometime in the month of December 2021, he got a tip off from a private investigator hired by the management of Trans Mara Sugar Company to probe claims of fraud raised by a number of cane farmers in Migori and Kisii. He explained that the farmers were accusing lawyers operating within South Nyanza region of filing fictitious lawsuits on their behalf against the company.
[37] DW1 further testified that, according to the source, the cases filed against the miller were mostly about unharvested cane and non-payment for cane delivered; and that the company estimated the total amount of the fraudulent claims to be in the region of Kshs. 30,000,000/=. It was further the evidence of DW1 that his source showed him police OB numbers and statements signed by the farmers concerned in which they distanced themselves from the court cases as well as affidavits and unsigned court summons prepared by the lawyers in question.
[38] It was the testimony of DW1 that, convinced that there was something going on worth reporting, he travelled to Trans Mara, Migori and Kisii to meet with the farmers. He added that he also spoke with the legal officer of Trans Mara Sugar Company who confirmed that the company was facing more than 1,000 lawsuits, the majority of which were fraudulent.
[39] DW1 further told the lower court that, after gathering information from the farmers and the company, he set out to look for the advocates mentioned and got comments from most of them except the respondent, whose telephone number he was unable to find. He added that he withheld the story for about 1 week as he endeavoured to get hold of the respondent in vain.
[40] DW1 conceded that he published the article complained of and added that he had evidence to back it up. He also conceded in cross-examination that the story was uploaded on the 1st appellant’s YouTube channel. It was further the contention of DW1 that his stories are voiced over and not in print form; and therefore the words set out in paragraph 4 of the Plaint were not his.
[41] By way of verification, DW1 testified that he met a farmer who had filed a report to the police against the respondent and obtained documents from him to confirm the truthfulness of the report. He also mentioned that, together with the farmer, they went to the police station and perused the Occurrence Book which contained his particular report and got to learn that the investigation was ongoing. DW1 testified that, his obligation as a journalist, was to publish the farmers’ stories because there was enough evidence to support such a report.
[42] DW2 was C I Justus Kiboi, the OCS of Nyamarambe Police Station. He produced the OB extract for entry No. 16/4/9/2020 in respect of a report made by Zedekiah Nyokangi Onkuba, Samwel Kenyando and Auge Mwathe. He testified that Samuel Kenyando filed a complaint against the filing of Rongo Magistrates Civil Case No. 96 of 2019 on his behalf without instructions. He added that the complainants position was that they were not aware of the civil cases filed in court on their behalf.
[43] Samwel Kenyando (DW3) also testified before the lower court as a defence witness. He adopted his witness statement dated 4th September 2020 and testified that the respondent was not a person known to him. He denied having instructed the respondent to file a civil case on his behalf at Rongo Law Courts against Trans Mara Sugar Company. He confirmed that he filed a complaint at Nyamarambe Police Station in respect of the respondent’s conduct.
[44] Having given due consideration to the lower court record, and in particular, the Judgment, the Grounds of Appeal as well as the written submissions filed herein, the issues for determination are as follows:
[a] Whether the respondent proved his case before the lower court to the requisite standard;
[b] Whether the learned magistrate committed an error of principle in making the awards she made.
[a] Whether the Respondent proved his case to the requisite standard:
[45] In Black’s Law Dictionary “defamation” is defined as:
1.The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault.
2. A false written or oral statement that damages another's reputation.
[46] A similar definition appears in Winfield on Tort, 8th Edition at page 254, in which defamation is defined to be:
"...the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person..."
[47] Hence, in the case of Miguna Miguna v Standard Group Limited, The Standard Limited, James Smart, Cyrus Ombati & Kenya Television Network (KTN) (Civil Appeal 164 of 2016 [2017] KECA 365 (KLR) (Civ) (28 July 2017) (Judgment), the Court of Appeal relied the following passage from the Common Law Series: The law of Tort at paragraph 25:
“The law of defa
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