Brief background:
1 By Plaint dated 17.02.2015, the Appellant instituted a claim of defamation against the Respondent and moved the trial court seeking the orders General damages, exemplary or punitive damages, an apology publicized in the same manner, in the same space, size and publicity as the offending article and Costs of the suit.
2 On its part, the Respondent pleaded absolute privilege under section 6 of the Defamation Act and a defence of justification under section 14 of the Defamation Act.
3 On 7.08.2023, Judgment was entered against the Appellant, the trial court dismissed the Appellant’s claim on the ground that, the Appellant did not prove all the ingredients of the tort of defamation. Consequently, a decree dated 13.02.2024 was issued.
4 Aggrieved by the said judgment and decree, the Appellant lodged this Appeal and filed a memorandum of appeal dated 3.06.2025, stating three grounds of appeal.
5 This forms the substratum of the appeal.
The Appellant’s Case:
6 It is his case that the following issues crystallize for determination:
a. Whether the trial court having found as a fact that the publication, the subject matter of the suit, was inaccurate erred in law by failing to apply the binding precedent of the Court of Appeal in Miguna Migunav Standard Group Limited & 4 Others (2017) eKLR.
b. Whether the trial court having found as a fact that the publication, the subject matter of the suit, was inaccurate erred in law by dismissing the Appellant’s claim on the ground that he had not called any witness to show that his reputation had been harmed when the law on only requires that the published words tend to lower the reputation of the Appellant.
c. Whether the trial court erred in law and in fact in assessing the general damages she would have awarded if the Appellant were successful as Ksh. 500,000, which is insufficient under the circumstances for failing to include aggravated damages.
7. Reliance is placed in the Court of Appeal in Miguna Miguna v Standard Group Limited & 4 Others (2017) eKLR which establishes the major principles to consider in a claim of defamation. Among the principles established, is a principle for the requirement to professionally establish the accuracy and truthfulness of court proceedings before publishing a report on the court proceedings.
8. Additionally, the court places the burden of establishing the accuracy and the truthfulness on the party that publishes a report on the court proceedings.In establishing this principle, the court held as follows;
“…The respondents carried those reports without establishing in any way whether the reports were true in fact or at all. Should they have carried out their duties as required, they would have found that it was the appellant who had made a report against his house help and that the house help had not made a report against the appellant to the police at all.”
7 He submits that it is an uncontested fact that the publication in dispute stated as follows;
“..Shem Mutenyo was charged with stealing oil worth more than Ksh.18.7 million from his employer. That he allegedly stole 181,610kgs of automative oil between 6th January 2011 and July 7, 2013 from his employer William Development ltd House.
He was charged with two others who were not before court. Mutenyo is also accused of handling stolen property at Huruma Shopping Centre in Nairobi..”
8 The Appellant’s grievance was that, the publication of being accused of handling stolen property at Huruma Shopping Centre in Nairobi was untrue.
9 Further, the trial court in its judgment bolstered the Appellant’s grievance by making a finding that; the publication by the Respondent was half true and that the last part of the publication was also not accurate. The trialcourt, also made a finding that the Respondent did not adduce evidence to show where he got the information from. Lastly, the trial court also made a finding that the Respondent cited the prosecution file but it never adduced it.
10 It is his case that the Respondent did not carry out its professional duties before publishing the publication that the Appellant was charged with handling Stolen property at Uhuru Shopping Centre in Nairobi.
11 He submits that the actions of the Respondent were negligent and reckless.
12 The defamatory publication according to him was formulated to make the news sensational for the benefit of the Respondent and detriment of the Appellant without any justification.
13 For obvious reasons that the Respondent and its witness are no ordinary persons and are required to act professionally.
14 He beseech this court to dismiss any arguments on privilege under section 6 of the Defamation Act that may be relied upon by the Respondent on the ground that.
15 It is his case that the Respondent should have acted professionally. The Appellant submits that the defence of justification does not hold water in this case because justification is only a defence if the statement made is true.
16 Reliance is placed in the case of Joseph Njogu Kamunge v Charles Muriuki Gachari(2016) eKLR, in which the court interpreted the term justification as used in the law of defamation as follows;
• “Terminologically, “justification” as used in the law of defamation, means “truth”. The defence calls for the defendant demonstrating that the defamatory imputation is true. He cannot get away with it by saying that he believed that the matter complained of was true. He has a burden to prove the words are true.”
17 Exhibit 3 produced by the Appellant at the trial court, in which the Appellant was charged with theft, that he allegedly stole oil at Williamson House, along 4th Avenue Ngong Road in Nairobi. In the exhibit there is no mention of handling stolen property at Huruma Centre or elsewhere.
18 It is submits that the trial court erred in law by failing to apply the binding principle of Miguna Miguna v Standard Group Limited & 4 Others (2017) eKLR and set aside judgment of the trial court.
19 In relation to ground 2 he submits that the trial court erred in law by holding that the Appellant did not call any witnesses who said that they thought he was worse of for being charged with both stealing and handling stolen property.
20 The article published by the Respondent portrayed the Appellant as someone who had been accused of two offences; stealing by servant at Williamson House along 4th Avenue Ngong Road and Handling Stolen property at Huruma.
21 The said publication lowered the reputation of the Appellant in two ways; firstly, by claiming that he had been accused of handling stolen property and secondly, by claiming that he had been accused of two offences.
22 Reliance is placed on the Court of Appeal holding in Miguna Miguna v Standard Group limited & 4 Others (2017) eKLR, in which the court did not necessitate calling a witness to prove damage to reputation.
23 In doing so the court held as follows;
• “By holding that the appellant needed to call witnesses to prove that the story was viewed and read as published, the learned Judge placed too high a standard on the part of the appellant whose duty did not extend beyond the usual standard in a civil case such as the one that was before her to prove the case on a balance of probabilities. We are of the respectful opinion that the appellant proved the case to the required standard. A reasonable man watching television telecast by the 5th respondent on that day or reading the report that was published by the 2nd respondent the next day would have understood that the appellant had assaulted his house help for which he had been arrested by police and should be charged in court with a criminal offence.”
24 It is his considered view that a reasonable man would have understood the publication in the ordinary meaning of the words.
25 That would be that, the Appellant did not only steal but also handled stolen property.
26 The words were published in a newspaper of nationwide circulation and the inescapable conclusion is that the words lowered the reputation of the Appellant in the estimation of ordinary, just and right-thinking members of the society.
27 The trial court erred in law and in fact by holding that the Appellant did not call any witness to prove damage on his reputation.
28 In relation to Ground 3 reliance is placed in the case of Hon. Uhuru Muigai Kenyatta v Baraza Limited t/a Kenya Television Network (KTN) (2011) eKLR, the court observed as follows on issue of damages in cases of defamation;
“It is well established by now that the issue of assessment of damages is at large in the case of defamation and the figure cannot be arrived at by any objective standard of computation. It is very difficult to measure the agony suffered by loss of reputation or thefeelings of a person hurt by such publication.”
29 The Respondent blatantly violated the constitutional rights of the Appellant by;
• Publishing false and defamatory words in total disregard of his right to have his dignity respected and promoted.
• Failing to respect his reputation when it was exercising its freedom of expression and freedom of the media.
• Failing to correct the untrue and misleading information which affected the Appellant even when it was notified.
30 Under Section 16A of the Defamation Act, provides that the court has discretion to award damages for defamation.
31 In award of damages they rely in Standard Limited v G.N Kagia T/A Kagia & Company Advocates, Civil Appeal No.115 of 2003 (2010) eKLR, in which court set out the following principles to be applied in awarding damages,
32 In situations where the author or publisher of a libel could have with due diligence verified the libellious story or in other words, where the author or publisher was reckless or negligent, these factors should be taken into account in assessing the level of damages.
33 The level of damages awarded should be such as to act as deterrence and to instill a sense of responsibility on the part of the authors and publishers of libel. Personal rights, freedoms andvalues should never be sacrificed at the altar of profiteering by authors and publishers.
34 It is submitted that all the above principles apply and should persuasively guide the court in the exercise of its discretion in awarding both general damages and punitive damages.
35 He submits that the Appellant is entitled to general damages of Ksh.2,000,000 and similar amounts as punitive damages with consideration of the facts of the case.
The Respondents case:
36 In supporting the judgment of the trial court it submits that The right to freedom of expression is not the right to be infallible.
37 It is the right to speak freely, even imperfectly, so long as it is done responsibly. " Reynolds v Times Newspapers Ltd. May it please the Honourable Court.
38 According to the respondent,The appeal before the Honourable Court rests on a misguided foundation that every factual inaccuracy in reporting amounts to defamation.
39 Defamation does not concern itself with minor missteps or the pursuit of perfect reporting. Its focus is narrower and more serious.
40 The law protects a person's reputation from falsehoods that are not only inaccurate but also unjustified, malicious, or reckless, and which cause real damage to how they are viewed by reasonable members of society.
41 The test is conjunctive and as such, honest errors and fair comment, even if imperfect, do not cross that line.
42 The Appellant raises three principal grievances. First, that the trial court failed to consider what it claims to be binding authority, namely Miguna Miguna v Standard Group Limited and 4 Others (2017) eKLR ("the Miguna case").
43 Second, that the court erred in finding no defamation where the Appellant had not called witnesses to prove actual harm to reputation.
44 And third, that the trial court failed to properly assess the damages it would have awarded had the claim succeeded.
45 In Gitobu Imanyara & 2 Others v Attorney General [20161 eKLR, the Court of Appeal underscored this duty, observing that a first appeal is "by way of retrial," and that the appellate court "must reconsider the evidence, evaluate it itself and draw its own conclusions," while bearing in mind that it has neither seen nor heard the witnesses and must therefore make due allowance for that limitation.
46 It submits that the Honourable Court will find no justifiable grounds to interfere with the findings of the trial court.
47 The facts of this matter were largely undisputed before the trial court. In summary, the Appellant's claim arises from an article published in the 20th May 2014 edition of The Star newspaper. Under the headline "Employee in CourtforStealing Oil" , the article reported as follows::
"An employee of an oil firm was yesterday charged with stealing oil worth more than Sh. 18.7 million from his employer.
48 Shem Mutenyo denied the charge before senior principal magistrate Peter Ndwiga.
The court heard that Mutenyo allegedly stole 181,61 O kgsofautomotive gas oil between January 6, 2011 and July 7, 2013 from his employer William Development Ltd House on Fourth Avenue Ngong Road in Nairobi. He was charged with others who were not before court.
Mutenyo is also accused of handling stolen property in Huruma Shopping Centre in Nairobi. "
49 In the Plaint dated 17th February 2015, the Appellant contended that the article was defamatory in that its natural and ordinary meaning conveyed, and was understood to mean that he had been charged with the offence of handling stolen property at Huruma Shopping Centre which he avers was untrue.
50 To substantiate this, the Appellant produced the charge sheet, which reflected only one count: stealing by servant.
51 In response, the Respondent relied on the testimony of Mr. Alphonce Mung'ahu, a court reporter assigned to cover proceedings at the Milimani Law Courts, who confirmed that he was present in court on 19th May 2014 when the Appellant was arraigned. Mr.Mung'ahu testified that he personally observed the proceedings and fairly reported what he saw and heard.
52 This testimony was not impeached in cross-examination.
53 The Appellant's principal grievance is with the trial court's finding that the impugned publication was not defamatory, notwithstanding its acknowledgment that the article was not entirely accurate (a fact which the Respondent denies).
54 Relying on the decision in the Miguna case, the Appellant contends that the Respondent bore a positive obligation to verify and substantiate the court proceedings that formed the subject matter of the article before publishing.
55 The core of the Appellant's complaint is a single line in the article, which stated: "Mutenyo is also accused of handling stolen property at Huruma Shopping Centre in Nairobi."
56 The Appellant avers that this statement was false, not borne out by the contents of the charge sheet, and was therefore defamatory.
57 In support of this contention, the Appellant submits at paragraph 22 of his written submissions that the ordinary and natural meaning of the publication would lead a reasonable reader to conclude that the Appellant was not only charged with stealing, but also with handling stolen property.
58 The publication, when considered as a whole and in its proper context, does not meet the legal threshold for defamation.
59 This is because even assuming that the sentence complained of was inaccurate, the Appellant fe ll short of demonstrating that it was defamatory.
60 Drawing from the holding in Wycliffe A Swanya v Toyota East Africa Ltd & another [20091 KECA 379 (KLR) it is common ground that to sustain the claim for defamation, it was incumbent upon the Appellant to prove the following:
"(i) That the matter of which the plaintiff complains is defamatory in character.
(ii) That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.
(iii) That it was published maliciously
(iv) In slander, subject to certain exceptions, that the plaintiff has suffered special damage. "
61 The Respondent submits that it was not sufficient for the Appellant to establish that a part of the article was inaccurate, without more, as the tort of defamation is not triggered by the mere existence of factual errors or omissions. Rather, the law requires proof that the statement in question caused, or was likely to cause, unjustified harm to the Appellant's reputation in the eyes of right-thinking members of society.
62 In Musikari Kombo v Royal Media Services Ltd [20141 KEHC 8426 (KLR), Odunga J (as he then was) succinctly explained this distinction, holding that:
"As stated hereinabove, defamation is not about publication of falsehoods against a person hence it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower the person in the estimation of right thinking members of society generally. Therefore, an injurious falsehood, though actionable may not necessarily be an attack on the plaintiff’s reputation so as to elevate it to the tort of defamation."
63 The Respondent agrees with this position and accordingly submit that the allegation that part of the article was false (which is denied) did not ipso facto mean that it was defamatory.
64 In this case, the Appellant had already been publicly charged with the serious offence of stealing petroleum products valued at over Kshs. 18.7 million from his employer, a charge that was accurately reported in the article and that the Appellant does not challenge.
65 It submits that it is against this backdrop, the alleged inaccuracy concerning a secondary accusation of handling stolen property must be viewed in its proper context.
66 It was incumbent upon the Appellant to demonstrate how, if at all, this additional reference materially altered the sting of the article or exposed him to greater ridicule, hatred, or contempt than the already serious charge of stealing oil worth Kshs. 18.7 million.
67 The article's central message remains true, the Appellant had been arraigned for theft by servant.
68 It submits that a peripheral misstatement, if any, that neither deepened nor aggravated the reputational harm cannot sustain a claim for defamation.
69 The Appellant further contends that the impugned line (whose inaccuracy is denied) was crafted to sensationalize the news to his detriment.
70 It submits that the trial court correctly observed, the Appellant did not produce any evidence to persuade the court that being charged with two offences, offences which are closely related, would lead anyone to think less of him than if he had been charged with just one.
71 The Appellant needed to prove that this extra detail made a real difference in how the public viewed him, he failed to do so.
72 To overcome this oversight, the Appellant argues that based on the Miguna case, there was no need to call a witness to prove damage to reputation.
73 In support of this view, the Appellant relies on the following excerpt from that case:
"By holding that the appellant needed to call witnesses to prove that the story was viewed and read as published, the learned Judge placed too high a standard on the part of the appellant whose duty did not extend beyond the usual standard in a civil case such as the one that was before her to prove the case on a balance of probabilities.
74 A reasonable man watching television telecast by the 5th respondent on that day or reading the report that was published by the 2nd respondent the next day would have understood that the appellant had assaulted his house help for which he had been arrested by police and should be charged in court with a criminal offence."
75 The Respondent invited this Court to note that this part of the judgment does not speak to the issue of proving damage to reputation.
76 In the Miguna case, the Court held that it is not necessary to call a witness to prove that defamatory material was published. However, that principle is wholly inapplicable to the present case.
77 Publication was not a contested issue at trial. Indeed, at page 61 of the Record, the learned trial Judge explicitly observed:
"On whether the defamatory statement or utterance was published by the defendants. It is not disputed that the article was published by the defendants. "
78 The Respondent submits that the Appellant has not demonstrated how the words complained of diminished his reputation in the eyes of right-thinking members of society.
79 The Appellant does not dispute the trial court' s finding that the publication was neither malicious nor reckless, and that he had not proved any animus, spite, or improper motive on the part of the Respondent in publishing the article.
80 At page 63 of the Record, the trial court stated that, had liability been established, it would have awarded general damages of Kshs. 500,000 together with an apology, as demanded in the pleadings.
81 It is the Respondent's case that this aspect of the judgment discloses no error in law or principle.
82 It is trite that the assessment of damages is a discretionary exercise, and an appellate court will not interfere merely because it might have reached a different conclusion.
83 In Ken Odondi & 2 others v James Okoth Omburah t/a Okoth Omburah & Company Advocates [20131 KECA 252 (KLR), the Court of Appeal endorsed the principle from Tanganyika Transport Co. Ltd v Ebrahim Nooray [19611 EA 55, holding that:
"The latitude in awarding damages in an action for libel is very wide and we must avoid substituting our own views on what the damages should have been against the award by the judge."
84 The Court of Appeal in Butt v Khan [19811 KLR 349 reaffirmed that:
"An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or it is founded on wrong principles of law. "
85 The Appellant has not demonstrated that the trial court misdirected itself in principle or that its award of Kshs. 500,000 was so excessive or so inadequate as to warrant appellate intervention.
86 On the contrary, the record confirms that the trial court considered the relevant legal principles in assessing damages. At page 63, the court cited the decision in C A M v Royal Media Services Limited [20131 KECA 178 (KLR) that:
"No case is like the other. In the exercise of discretion to award damages for defamation, the court has a 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 233243 include 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 Plaintiffs 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 Plaintiffs reputation past and future."
87 The Respondent submits that the figure indicated by the trial court was sufficient and consistent with established benchmarks in comparable cases.
88 In Daniel Mutunga Nzoka v Dancan Kisilu Singi [20121 KEHC 4019 (KLR), an award of Kshs. 500,000 was upheld as sufficient on appeal. Likewise, in Olunga v Citizen & 2 others [20221 KEHC 13570 (KLR), the High Court found that damages of shs. 500,000 was a fair and proportionate award.
89 It submits that there are no legal or factual grounds to interfere with the trial court's considered and proportionate assessment of quantum.
90 The Appellant has failed to demonstrate any error of law or fact that would justify appellate interference with the judgment of the trial court.
91 As regards damages, the trial court's assessment was modest, reasoned, and entirely consistent with precedent.
92 In any event, the question of quantum is moot, as liability was never established.
Analysis and determination;
93 Being a first appeal, this court has the power to relooked at and analyze the evidence and the case that was before the trial court, and arrived at its own finding.
94 This must however, be done within the framework of the principles set out in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
95 The court has looked at the record of appeal, the Memorandum of Appeal and the rival submissions and formed the opinion that the issues for determination are:
1) Whether or not the appeal has merit.
2) Who shall bear the costs.
Whether or not the appeal has merit.
96 The Respondent relied on the testimony of Mr. Alphonce Mung'ahu, a court reporter assigned to cover proceedings at the Milimani Law Courts, who confirmed that he was present in court on 19th May 2014 when the Appellant was arraigned.He testified that he personally observed the proceedings and fairly reported what he saw and heard.
97 In Kisumu Civil Appeal No. 56 of 2020 it was held that an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles.That was the holding of the Court of Appeal in Mkube v Nyamuro [19831 LLR at 403, where Kneller JA & Hancox Ag JJA held that:
A Court on appeal will not normally interfere with the finding by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion. "
98 In the case of Wycliffe A Swanya v Toyota East Africa Ltd & another [20091 KECA 379 (KLR) it was held that it is common ground that to sustain the claim for defamation, it was incumbent upon the Appellant to prove the following:
"(i) That the matter of which the plaintiff complains is defamatory in character.
(ii) That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.
(iii) That it was published maliciously
(iv) In slander, subject to certain exceptions, that the plaintiff has suffered special damage. "
99 In the instant case the publication in dispute stated as follows;
“..Shem Mutenyo was charged with stealing oil worth more than Ksh.18.7 million from his employer. That he allegedly stole 181,610kgs of automative oil between 6th January 2011 and July 7, 2013 from his employer William Development ltd House.
He was charged with two others who were not before court. Mutenyo is also accused of handling stolen property at Huruma Shopping Centre in Nairobi..”
100 The publication of being accused of handling stolen property at Huruma Shopping Centre in Nairobi was untrue.
101 The Respondents’ argument that the Appellant had already been publicly charged with the serious offence of stealing petroleum products valued at over Kshs. 18.7 million from his employer, a charge that was accurately reported in the article cannot come to the Respondent’s aid.
102 The foregoing ingredients of defamation were reiterated in the case of John Edward vs Standard Ltd where the court stated as follows:-
"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:-
A. The statement must be defamatory.
B. The statement must refer to the plaintiff.
C. The statement must be published by the defendant.
D. The statement must be false."
103 This court is satisfied that the appellant’s case fulfilled the above ingredients.
104 The statement was not accurate, it referred to the appellant ,it was published by the Respondent and it was partly false.
105 In the Court of Appeal in Miguna Miguna v Standard Group Limited & 4 Others (2017) eKLR which establishes major principles to consider in a claim of defamation. Among the principles established, is a principle for the requirement to professionally establish the accuracy and truthfulness of court proceedings before publishing a report on the court proceedings.
106 The respondent did not make any effort towards establishing whether water was reported with accurate.
107 This court is satisfied that the Respondent did not carry out its professional duties to verify the truth before publishing the publication that the Appellant was charged with Handling Stolen property at Uhuru Shopping Centre in Nairobi.
108 This is very different shopping Centre from Huruma Shopping Centre in Nairobi.Had the Respondent made an effort to verify the facts before reporting them it would have established the accurate facts.
109 The trial court made an observation that the publication by the Respondent was half true and that the last part of the publication was also not accurate. The trial court, also made a finding that the Respondent did not adduce evidence to show where he got the information from. Lastly, the trial court also made a finding that the Respondent cited the prosecution file but it never adduced it.
110 Though the trial court embraced the foregoing,it failed to apply the correct principles in reaching or arriving at the impugned judgment.
111 The paper has a national coverage which means that the defamatory statement was communicated to someone other than the person defamed.
112 On the issue of general damages the court is guided by the case of Daniel Mutunga Nzoka v Dancan K
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1 By Plaint dated 17.02.2015, the Appellant instituted a claim of defamation against the Respondent and moved the trial court seeking the orders General damages, exemplary or punitive damages, an apology publicized in the same manner, in the same space, size and publicity as the offending article and Costs of the suit.
2 On its part, the Respondent pleaded absolute privilege under section 6 of the Defamation Act and a defence of justification under section 14 of the Defamation Act.
3 On 7.08.2023, Judgment was entered against the Appellant, the trial court dismissed the Appellant’s claim on the ground that, the Appellant did not prove all the ingredients of the tort of defamation. Consequently, a decree dated 13.02.2024 was issued.
4 Aggrieved by the said judgment and decree, the Appellant lodged this Appeal and filed a memorandum of appeal dated 3.06.2025, stating three grounds of appeal.
5 This forms the substratum of the appeal.
The Appellant’s Case:
6 It is his case that the following issues crystallize for determination:
a. Whether the trial court having found as a fact that the publication, the subject matter of the suit, was inaccurate erred in law by failing to apply the binding precedent of the Court of Appeal in Miguna Migunav Standard Group Limited & 4 Others (2017) eKLR.
b. Whether the trial court having found as a fact that the publication, the subject matter of the suit, was inaccurate erred in law by dismissing the Appellant’s claim on the ground that he had not called any witness to show that his reputation had been harmed when the law on only requires that the published words tend to lower the reputation of the Appellant.
c. Whether the trial court erred in law and in fact in assessing the general damages she would have awarded if the Appellant were successful as Ksh. 500,000, which is insufficient under the circumstances for failing to include aggravated damages.
7. Reliance is placed in the Court of Appeal in Miguna Miguna v Standard Group Limited & 4 Others (2017) eKLR which establishes the major principles to consider in a claim of defamation. Among the principles established, is a principle for the requirement to professionally establish the accuracy and truthfulness of court proceedings before publishing a report on the court proceedings.
8. Additionally, the court places the burden of establishing the accuracy and the truthfulness on the party that publishes a report on the court proceedings.In establishing this principle, the court held as follows;
“…The respondents carried those reports without establishing in any way whether the reports were true in fact or at all. Should they have carried out their duties as required, they would have found that it was the appellant who had made a report against his house help and that the house help had not made a report against the appellant to the police at all.”
7 He submits that it is an uncontested fact that the publication in dispute stated as follows;
“..Shem Mutenyo was charged with stealing oil worth more than Ksh.18.7 million from his employer. That he allegedly stole 181,610kgs of automative oil between 6th January 2011 and July 7, 2013 from his employer William Development ltd House.
He was charged with two others who were not before court. Mutenyo is also accused of handling stolen property at Huruma Shopping Centre in Nairobi..”
8 The Appellant’s grievance was that, the publication of being accused of handling stolen property at Huruma Shopping Centre in Nairobi was untrue.
9 Further, the trial court in its judgment bolstered the Appellant’s grievance by making a finding that; the publication by the Respondent was half true and that the last part of the publication was also not accurate. The trialcourt, also made a finding that the Respondent did not adduce evidence to show where he got the information from. Lastly, the trial court also made a finding that the Respondent cited the prosecution file but it never adduced it.
10 It is his case that the Respondent did not carry out its professional duties before publishing the publication that the Appellant was charged with handling Stolen property at Uhuru Shopping Centre in Nairobi.
11 He submits that the actions of the Respondent were negligent and reckless.
12 The defamatory publication according to him was formulated to make the news sensational for the benefit of the Respondent and detriment of the Appellant without any justification.
13 For obvious reasons that the Respondent and its witness are no ordinary persons and are required to act professionally.
14 He beseech this court to dismiss any arguments on privilege under section 6 of the Defamation Act that may be relied upon by the Respondent on the ground that.
15 It is his case that the Respondent should have acted professionally. The Appellant submits that the defence of justification does not hold water in this case because justification is only a defence if the statement made is true.
16 Reliance is placed in the case of Joseph Njogu Kamunge v Charles Muriuki Gachari(2016) eKLR, in which the court interpreted the term justification as used in the law of defamation as follows;
• “Terminologically, “justification” as used in the law of defamation, means “truth”. The defence calls for the defendant demonstrating that the defamatory imputation is true. He cannot get away with it by saying that he believed that the matter complained of was true. He has a burden to prove the words are true.”
17 Exhibit 3 produced by the Appellant at the trial court, in which the Appellant was charged with theft, that he allegedly stole oil at Williamson House, along 4th Avenue Ngong Road in Nairobi. In the exhibit there is no mention of handling stolen property at Huruma Centre or elsewhere.
18 It is submits that the trial court erred in law by failing to apply the binding principle of Miguna Miguna v Standard Group Limited & 4 Others (2017) eKLR and set aside judgment of the trial court.
19 In relation to ground 2 he submits that the trial court erred in law by holding that the Appellant did not call any witnesses who said that they thought he was worse of for being charged with both stealing and handling stolen property.
20 The article published by the Respondent portrayed the Appellant as someone who had been accused of two offences; stealing by servant at Williamson House along 4th Avenue Ngong Road and Handling Stolen property at Huruma.
21 The said publication lowered the reputation of the Appellant in two ways; firstly, by claiming that he had been accused of handling stolen property and secondly, by claiming that he had been accused of two offences.
22 Reliance is placed on the Court of Appeal holding in Miguna Miguna v Standard Group limited & 4 Others (2017) eKLR, in which the court did not necessitate calling a witness to prove damage to reputation.
23 In doing so the court held as follows;
• “By holding that the appellant needed to call witnesses to prove that the story was viewed and read as published, the learned Judge placed too high a standard on the part of the appellant whose duty did not extend beyond the usual standard in a civil case such as the one that was before her to prove the case on a balance of probabilities. We are of the respectful opinion that the appellant proved the case to the required standard. A reasonable man watching television telecast by the 5th respondent on that day or reading the report that was published by the 2nd respondent the next day would have understood that the appellant had assaulted his house help for which he had been arrested by police and should be charged in court with a criminal offence.”
24 It is his considered view that a reasonable man would have understood the publication in the ordinary meaning of the words.
25 That would be that, the Appellant did not only steal but also handled stolen property.
26 The words were published in a newspaper of nationwide circulation and the inescapable conclusion is that the words lowered the reputation of the Appellant in the estimation of ordinary, just and right-thinking members of the society.
27 The trial court erred in law and in fact by holding that the Appellant did not call any witness to prove damage on his reputation.
28 In relation to Ground 3 reliance is placed in the case of Hon. Uhuru Muigai Kenyatta v Baraza Limited t/a Kenya Television Network (KTN) (2011) eKLR, the court observed as follows on issue of damages in cases of defamation;
“It is well established by now that the issue of assessment of damages is at large in the case of defamation and the figure cannot be arrived at by any objective standard of computation. It is very difficult to measure the agony suffered by loss of reputation or thefeelings of a person hurt by such publication.”
29 The Respondent blatantly violated the constitutional rights of the Appellant by;
• Publishing false and defamatory words in total disregard of his right to have his dignity respected and promoted.
• Failing to respect his reputation when it was exercising its freedom of expression and freedom of the media.
• Failing to correct the untrue and misleading information which affected the Appellant even when it was notified.
30 Under Section 16A of the Defamation Act, provides that the court has discretion to award damages for defamation.
31 In award of damages they rely in Standard Limited v G.N Kagia T/A Kagia & Company Advocates, Civil Appeal No.115 of 2003 (2010) eKLR, in which court set out the following principles to be applied in awarding damages,
32 In situations where the author or publisher of a libel could have with due diligence verified the libellious story or in other words, where the author or publisher was reckless or negligent, these factors should be taken into account in assessing the level of damages.
33 The level of damages awarded should be such as to act as deterrence and to instill a sense of responsibility on the part of the authors and publishers of libel. Personal rights, freedoms andvalues should never be sacrificed at the altar of profiteering by authors and publishers.
34 It is submitted that all the above principles apply and should persuasively guide the court in the exercise of its discretion in awarding both general damages and punitive damages.
35 He submits that the Appellant is entitled to general damages of Ksh.2,000,000 and similar amounts as punitive damages with consideration of the facts of the case.
The Respondents case:
36 In supporting the judgment of the trial court it submits that The right to freedom of expression is not the right to be infallible.
37 It is the right to speak freely, even imperfectly, so long as it is done responsibly. " Reynolds v Times Newspapers Ltd. May it please the Honourable Court.
38 According to the respondent,The appeal before the Honourable Court rests on a misguided foundation that every factual inaccuracy in reporting amounts to defamation.
39 Defamation does not concern itself with minor missteps or the pursuit of perfect reporting. Its focus is narrower and more serious.
40 The law protects a person's reputation from falsehoods that are not only inaccurate but also unjustified, malicious, or reckless, and which cause real damage to how they are viewed by reasonable members of society.
41 The test is conjunctive and as such, honest errors and fair comment, even if imperfect, do not cross that line.
42 The Appellant raises three principal grievances. First, that the trial court failed to consider what it claims to be binding authority, namely Miguna Miguna v Standard Group Limited and 4 Others (2017) eKLR ("the Miguna case").
43 Second, that the court erred in finding no defamation where the Appellant had not called witnesses to prove actual harm to reputation.
44 And third, that the trial court failed to properly assess the damages it would have awarded had the claim succeeded.
45 In Gitobu Imanyara & 2 Others v Attorney General [20161 eKLR, the Court of Appeal underscored this duty, observing that a first appeal is "by way of retrial," and that the appellate court "must reconsider the evidence, evaluate it itself and draw its own conclusions," while bearing in mind that it has neither seen nor heard the witnesses and must therefore make due allowance for that limitation.
46 It submits that the Honourable Court will find no justifiable grounds to interfere with the findings of the trial court.
47 The facts of this matter were largely undisputed before the trial court. In summary, the Appellant's claim arises from an article published in the 20th May 2014 edition of The Star newspaper. Under the headline "Employee in CourtforStealing Oil" , the article reported as follows::
"An employee of an oil firm was yesterday charged with stealing oil worth more than Sh. 18.7 million from his employer.
48 Shem Mutenyo denied the charge before senior principal magistrate Peter Ndwiga.
The court heard that Mutenyo allegedly stole 181,61 O kgsofautomotive gas oil between January 6, 2011 and July 7, 2013 from his employer William Development Ltd House on Fourth Avenue Ngong Road in Nairobi. He was charged with others who were not before court.
Mutenyo is also accused of handling stolen property in Huruma Shopping Centre in Nairobi. "
49 In the Plaint dated 17th February 2015, the Appellant contended that the article was defamatory in that its natural and ordinary meaning conveyed, and was understood to mean that he had been charged with the offence of handling stolen property at Huruma Shopping Centre which he avers was untrue.
50 To substantiate this, the Appellant produced the charge sheet, which reflected only one count: stealing by servant.
51 In response, the Respondent relied on the testimony of Mr. Alphonce Mung'ahu, a court reporter assigned to cover proceedings at the Milimani Law Courts, who confirmed that he was present in court on 19th May 2014 when the Appellant was arraigned. Mr.Mung'ahu testified that he personally observed the proceedings and fairly reported what he saw and heard.
52 This testimony was not impeached in cross-examination.
53 The Appellant's principal grievance is with the trial court's finding that the impugned publication was not defamatory, notwithstanding its acknowledgment that the article was not entirely accurate (a fact which the Respondent denies).
54 Relying on the decision in the Miguna case, the Appellant contends that the Respondent bore a positive obligation to verify and substantiate the court proceedings that formed the subject matter of the article before publishing.
55 The core of the Appellant's complaint is a single line in the article, which stated: "Mutenyo is also accused of handling stolen property at Huruma Shopping Centre in Nairobi."
56 The Appellant avers that this statement was false, not borne out by the contents of the charge sheet, and was therefore defamatory.
57 In support of this contention, the Appellant submits at paragraph 22 of his written submissions that the ordinary and natural meaning of the publication would lead a reasonable reader to conclude that the Appellant was not only charged with stealing, but also with handling stolen property.
58 The publication, when considered as a whole and in its proper context, does not meet the legal threshold for defamation.
59 This is because even assuming that the sentence complained of was inaccurate, the Appellant fe ll short of demonstrating that it was defamatory.
60 Drawing from the holding in Wycliffe A Swanya v Toyota East Africa Ltd & another [20091 KECA 379 (KLR) it is common ground that to sustain the claim for defamation, it was incumbent upon the Appellant to prove the following:
"(i) That the matter of which the plaintiff complains is defamatory in character.
(ii) That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.
(iii) That it was published maliciously
(iv) In slander, subject to certain exceptions, that the plaintiff has suffered special damage. "
61 The Respondent submits that it was not sufficient for the Appellant to establish that a part of the article was inaccurate, without more, as the tort of defamation is not triggered by the mere existence of factual errors or omissions. Rather, the law requires proof that the statement in question caused, or was likely to cause, unjustified harm to the Appellant's reputation in the eyes of right-thinking members of society.
62 In Musikari Kombo v Royal Media Services Ltd [20141 KEHC 8426 (KLR), Odunga J (as he then was) succinctly explained this distinction, holding that:
"As stated hereinabove, defamation is not about publication of falsehoods against a person hence it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower the person in the estimation of right thinking members of society generally. Therefore, an injurious falsehood, though actionable may not necessarily be an attack on the plaintiff’s reputation so as to elevate it to the tort of defamation."
63 The Respondent agrees with this position and accordingly submit that the allegation that part of the article was false (which is denied) did not ipso facto mean that it was defamatory.
64 In this case, the Appellant had already been publicly charged with the serious offence of stealing petroleum products valued at over Kshs. 18.7 million from his employer, a charge that was accurately reported in the article and that the Appellant does not challenge.
65 It submits that it is against this backdrop, the alleged inaccuracy concerning a secondary accusation of handling stolen property must be viewed in its proper context.
66 It was incumbent upon the Appellant to demonstrate how, if at all, this additional reference materially altered the sting of the article or exposed him to greater ridicule, hatred, or contempt than the already serious charge of stealing oil worth Kshs. 18.7 million.
67 The article's central message remains true, the Appellant had been arraigned for theft by servant.
68 It submits that a peripheral misstatement, if any, that neither deepened nor aggravated the reputational harm cannot sustain a claim for defamation.
69 The Appellant further contends that the impugned line (whose inaccuracy is denied) was crafted to sensationalize the news to his detriment.
70 It submits that the trial court correctly observed, the Appellant did not produce any evidence to persuade the court that being charged with two offences, offences which are closely related, would lead anyone to think less of him than if he had been charged with just one.
71 The Appellant needed to prove that this extra detail made a real difference in how the public viewed him, he failed to do so.
72 To overcome this oversight, the Appellant argues that based on the Miguna case, there was no need to call a witness to prove damage to reputation.
73 In support of this view, the Appellant relies on the following excerpt from that case:
"By holding that the appellant needed to call witnesses to prove that the story was viewed and read as published, the learned Judge placed too high a standard on the part of the appellant whose duty did not extend beyond the usual standard in a civil case such as the one that was before her to prove the case on a balance of probabilities.
74 A reasonable man watching television telecast by the 5th respondent on that day or reading the report that was published by the 2nd respondent the next day would have understood that the appellant had assaulted his house help for which he had been arrested by police and should be charged in court with a criminal offence."
75 The Respondent invited this Court to note that this part of the judgment does not speak to the issue of proving damage to reputation.
76 In the Miguna case, the Court held that it is not necessary to call a witness to prove that defamatory material was published. However, that principle is wholly inapplicable to the present case.
77 Publication was not a contested issue at trial. Indeed, at page 61 of the Record, the learned trial Judge explicitly observed:
"On whether the defamatory statement or utterance was published by the defendants. It is not disputed that the article was published by the defendants. "
78 The Respondent submits that the Appellant has not demonstrated how the words complained of diminished his reputation in the eyes of right-thinking members of society.
79 The Appellant does not dispute the trial court' s finding that the publication was neither malicious nor reckless, and that he had not proved any animus, spite, or improper motive on the part of the Respondent in publishing the article.
80 At page 63 of the Record, the trial court stated that, had liability been established, it would have awarded general damages of Kshs. 500,000 together with an apology, as demanded in the pleadings.
81 It is the Respondent's case that this aspect of the judgment discloses no error in law or principle.
82 It is trite that the assessment of damages is a discretionary exercise, and an appellate court will not interfere merely because it might have reached a different conclusion.
83 In Ken Odondi & 2 others v James Okoth Omburah t/a Okoth Omburah & Company Advocates [20131 KECA 252 (KLR), the Court of Appeal endorsed the principle from Tanganyika Transport Co. Ltd v Ebrahim Nooray [19611 EA 55, holding that:
"The latitude in awarding damages in an action for libel is very wide and we must avoid substituting our own views on what the damages should have been against the award by the judge."
84 The Court of Appeal in Butt v Khan [19811 KLR 349 reaffirmed that:
"An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or it is founded on wrong principles of law. "
85 The Appellant has not demonstrated that the trial court misdirected itself in principle or that its award of Kshs. 500,000 was so excessive or so inadequate as to warrant appellate intervention.
86 On the contrary, the record confirms that the trial court considered the relevant legal principles in assessing damages. At page 63, the court cited the decision in C A M v Royal Media Services Limited [20131 KECA 178 (KLR) that:
"No case is like the other. In the exercise of discretion to award damages for defamation, the court has a 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 233243 include 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 Plaintiffs 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 Plaintiffs reputation past and future."
87 The Respondent submits that the figure indicated by the trial court was sufficient and consistent with established benchmarks in comparable cases.
88 In Daniel Mutunga Nzoka v Dancan Kisilu Singi [20121 KEHC 4019 (KLR), an award of Kshs. 500,000 was upheld as sufficient on appeal. Likewise, in Olunga v Citizen & 2 others [20221 KEHC 13570 (KLR), the High Court found that damages of shs. 500,000 was a fair and proportionate award.
89 It submits that there are no legal or factual grounds to interfere with the trial court's considered and proportionate assessment of quantum.
90 The Appellant has failed to demonstrate any error of law or fact that would justify appellate interference with the judgment of the trial court.
91 As regards damages, the trial court's assessment was modest, reasoned, and entirely consistent with precedent.
92 In any event, the question of quantum is moot, as liability was never established.
Analysis and determination;
93 Being a first appeal, this court has the power to relooked at and analyze the evidence and the case that was before the trial court, and arrived at its own finding.
94 This must however, be done within the framework of the principles set out in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
95 The court has looked at the record of appeal, the Memorandum of Appeal and the rival submissions and formed the opinion that the issues for determination are:
1) Whether or not the appeal has merit.
2) Who shall bear the costs.
Whether or not the appeal has merit.
96 The Respondent relied on the testimony of Mr. Alphonce Mung'ahu, a court reporter assigned to cover proceedings at the Milimani Law Courts, who confirmed that he was present in court on 19th May 2014 when the Appellant was arraigned.He testified that he personally observed the proceedings and fairly reported what he saw and heard.
97 In Kisumu Civil Appeal No. 56 of 2020 it was held that an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles.That was the holding of the Court of Appeal in Mkube v Nyamuro [19831 LLR at 403, where Kneller JA & Hancox Ag JJA held that:
A Court on appeal will not normally interfere with the finding by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion. "
98 In the case of Wycliffe A Swanya v Toyota East Africa Ltd & another [20091 KECA 379 (KLR) it was held that it is common ground that to sustain the claim for defamation, it was incumbent upon the Appellant to prove the following:
"(i) That the matter of which the plaintiff complains is defamatory in character.
(ii) That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.
(iii) That it was published maliciously
(iv) In slander, subject to certain exceptions, that the plaintiff has suffered special damage. "
99 In the instant case the publication in dispute stated as follows;
“..Shem Mutenyo was charged with stealing oil worth more than Ksh.18.7 million from his employer. That he allegedly stole 181,610kgs of automative oil between 6th January 2011 and July 7, 2013 from his employer William Development ltd House.
He was charged with two others who were not before court. Mutenyo is also accused of handling stolen property at Huruma Shopping Centre in Nairobi..”
100 The publication of being accused of handling stolen property at Huruma Shopping Centre in Nairobi was untrue.
101 The Respondents’ argument that the Appellant had already been publicly charged with the serious offence of stealing petroleum products valued at over Kshs. 18.7 million from his employer, a charge that was accurately reported in the article cannot come to the Respondent’s aid.
102 The foregoing ingredients of defamation were reiterated in the case of John Edward vs Standard Ltd where the court stated as follows:-
"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:-
A. The statement must be defamatory.
B. The statement must refer to the plaintiff.
C. The statement must be published by the defendant.
D. The statement must be false."
103 This court is satisfied that the appellant’s case fulfilled the above ingredients.
104 The statement was not accurate, it referred to the appellant ,it was published by the Respondent and it was partly false.
105 In the Court of Appeal in Miguna Miguna v Standard Group Limited & 4 Others (2017) eKLR which establishes major principles to consider in a claim of defamation. Among the principles established, is a principle for the requirement to professionally establish the accuracy and truthfulness of court proceedings before publishing a report on the court proceedings.
106 The respondent did not make any effort towards establishing whether water was reported with accurate.
107 This court is satisfied that the Respondent did not carry out its professional duties to verify the truth before publishing the publication that the Appellant was charged with Handling Stolen property at Uhuru Shopping Centre in Nairobi.
108 This is very different shopping Centre from Huruma Shopping Centre in Nairobi.Had the Respondent made an effort to verify the facts before reporting them it would have established the accurate facts.
109 The trial court made an observation that the publication by the Respondent was half true and that the last part of the publication was also not accurate. The trial court, also made a finding that the Respondent did not adduce evidence to show where he got the information from. Lastly, the trial court also made a finding that the Respondent cited the prosecution file but it never adduced it.
110 Though the trial court embraced the foregoing,it failed to apply the correct principles in reaching or arriving at the impugned judgment.
111 The paper has a national coverage which means that the defamatory statement was communicated to someone other than the person defamed.
112 On the issue of general damages the court is guided by the case of Daniel Mutunga Nzoka v Dancan K
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