(Being an appeal from the judgement and decree of the Hon. S.N. Muchungi SRM delivered on the 22nd November, 2024 in Milimani CMCC No. 11409 of 2018)
1. This is an appeal arising from judgment of Hon. S.N Muchungi delivered on 22nd November, 2024 in CMCC at Milimani Civil suit No. 11409 of 2018. The suit originated from a plaint dated 21st December, 2018 filed by Nehemiah Stone Bic Misiani being the Plaintiff in the trial court against the National Examination Council, the Appellant herein.
2. The Appellant presented three grounds of appeal through the Memorandum of Appeal dated 24th March, 2025, as follows:
i. The learned trial Magistrate erred in fact and law by holding the Appellant liable for defamation when it was lawfully carrying out its duties under KNEC Act and Rules by relying on the report by the Sub County Director of Education, which confirmed that the school did not exist on the premises it claimed and hence it was in order for the candidates to be transferred to another centre to sit for the 2018 KCSE examination.
ii. The learned trial Magistrate erred in law and fact when she awarded general damages of Kshs.5,000,000/- and exemplary damages of Kshs. 2,000,000/- which are manifestly high and excessive in the circumstances.
iii. The learned trial Magistrate erred in law and fact when she found that the essential elements of the tort of defamation had been proved by the respondent contrary to the evidence adduced by the parties.
3. By way of a brief background, the Respondent sued the Appellant for general and aggravated/exemplary damages for defamation through the Plaint dated 21st December, 2018. The Respondent pleaded that between 28th February and 20th April, 2018, the Appellant, who had access to the data of the candidates schooling at the Respondent’s school, fraudulently and maliciously manipulated the data and generated a publication that made the Respondent’s candidates appear as private candidates duly registered to write KCSE examination at the Kikuyu private centre.
4. He claimed that the publication together with the photos of the candidates wearing the Respondent’s school uniform was libelous to the Respondent and it meant that the school was operating illegally; the Respondent was a crook operating a school illegally; the Respondent was a conman who collected money from students in form of school fees when the school could not qualify to register students for KCSE examinations; and that the school should be shunned by any right thinking members of the society.
5. The Respondent averred that as a result of the impugned publication, his reputation was injured and he was brought into hatred, disrepute, ridicule, odium and contempt. He also stated that parents lost faith in the school and transferred the students to other schools of which he suffered financial loss.
6. He further stated that the Appellant substituted his school’s code with the one for Kikuyu Private candidate’s centre which automatically transferred the candidates from his school to the private center. He stated that the changes were effected without his knowledge and the parents and students affected did not have knowledge about the same and did not consent to the change.
7. He further stated that the Appellant failed or ignored to respond to the school’s letters regarding registration of the 2018 KCSE examination. The parents became suspicious of the happenings and refused to pay school fees occasioning him financial losses, reputational injury, psychological torture, humiliation to his family and threats to his life which forced him to flee the country.
8. The Respondent further pointed out that he had several standoffs with the Appellant from 2012 which soured his relationship with some education officials within the Sub-County occasioning difficulties and suffering to him and the students.
9. The Appellant on the other hand, pleaded that it is an institution established under the Kenya National Examination Council (KNEC) Act tasked with the responsibility of maintaining examination standards and authorized under the Act to make rules regulating the conduct of examinations and other purposes incidental thereto.
10. In its defence, the Appellant further stated that the Respondent had constantly had issues with the Ministry of Education and KNEC since 2012. It averred that the Respondent was conversant with the process of reactivation of the school code as his school’s code had been deactivated on two occasions for failing to present candidates for KCSE examination.
11. The Appellant further stated that the regulations are put in place to protect learners and parents and for the proper and fair administration of examination. They further stated that they did not act maliciously and did not treat the applicant differently from other examination centers.
12. The Appellant further stated that regulations on registration are standard practice and procedures issued in compliance with the Appellant’s policies and procedures throughout the country and cannot be termed as defamation by the Respondent.
13. PW1 Nehemiah Stone Bic Misiani, testified that he was the proprietor of Stonebic school and he was seeking damages for defamation. He asserted that the school was still in existence but not operational as it stopped operations in 2019. He stated that he was not aware of any complaints on how the schools were being run. He pointed out that he was charged on public health issues regarding health and safety standards in the school. He further stated that Stonebic High School was registered as an examination centre in 2003. He stated that he was conversant with the registration process and management of an examination centre. He also stated that he had another school by the name Queen Esther Girls school which is different from Stonebic school.
14. Mathew Oniego Magasi PW2, stated that he was a parent at Stonebic High School from 2015 to 2018. It is in his statement that he enrolled his granddaughter at the school at it was reputed for high standards of discipline and excellent academic performance. The school had a school refund policy where the school would refund school fees if the student who had scored 300 marks and above failed to join university.
15. He stated that in May 2018, he received information from his wife informing him that she had heard from other parents that Stonebic High School was operating illegally and would not conduct the 2018 KCSE examination. In October, 2018, the director of the School, PW1, invited form four parents to the school and disclosed that KNEC had placed the candidates at Thogoto Primary School as private candidates. It is in his statement that chaos broke out at the meeting as parents confronted PW1 terming him as a conman and demanded a refund of the fees paid.
16. He averred that PW1 prevailed upon him to register the student in another school the following year. He stated that he did not want his child to be registered as a private candidate and agreed on condition that PW1 would cater for all the full cost.
17. Befly J. Bisem, DW1 stated that she was the Deputy Director/ Legal Services of the Appellant herein. She informed the court that the respondent is authorized by the KNEC Act to issue regulations and guidelines on the registration and management of examination centers. She pointed out that the regulations are put in place to protect learners and parents and for proper and fair administration of examination. She further stated that the Appellant did not act maliciously and did not treat the respondent differently from other examination centers.
18. The Appellant further stated that the regulations on registration are standard practice and procedures and issued in compliance with the Appellant’s policies and procedures throughout the country and cannot be termed as defamation by the Respondent.
19. The trial court considered the matter and delivered judgment against the Appellant and awarded the respondent general damages of Kshs. 5,000,000/- and exemplary damages of Kshs. 2,000,000/-.
Determination
20. Directions were subsequently taken that the appeal be canvassed by way of written submissions. The Appellant’s counsel filed their written submissions dated 29th October, 2025 while that of the Respondent are dated 31st October, 2025 which this court has considered.
21. This being a first appeal, the role of this court is to re-evaluate the evidence tendered during trial with a view to making its own conclusions and findings giving room to the fact that the trial court had the advantage of observing the witnesses first hand as they testified. (Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). This court nevertheless appreciates that an appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings (Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348).
22. This appeal as evaluated by this court raises two issues for consideration and determination;
a. Whether the 1st Respondent proved his claim for defamation against the Appellant.
b. Whether the award for general and aggravated damages were excessive.
23. On whether the respondent proved his case on defamation on a balance of probabilities as required by law, Black Law’s Dictionary 8th Edition defines defamation as “the act of harming the reputation of another by making a false statement to a third person.” The Court of Appeal in SMW v ZWM [2015] eKLR, defined a defamatory statement as:
“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”
24. The elements of defamation were outlined by the Court of Appeal in the cases of Selina Patani & another v Dhiranji v Patani [2019] eKLR and Raphael Lukale v Elizabeth Mayabi & another [2018] eKLR as follows:
i. The statement must be defamatory.
ii. The statement must refer to the plaintiff.
iii. The statement must be published by the defendant.
iv. The statement must be false.
25. It is not contested in this case that the Appellant published the transfer of 2018 KCSE candidates and registered them as private candidates and they could be identified as candidates from Stonebic High based on their uniform.
26. The Respondent took the position that the impugned publication implied that he was a dishonest person who engaged in fraud, conmanship and running unregistered school.
27. On its part, the Appellant advanced the defence that the publication was made in good faith based on the information received from Kikuyu Sub-County Director of Education (SCDE) who wrote to the Appellant informing them that the centre did not exist. The Appellant further stated that the publication was made in the course of lawful execution of its statutory mandate based on the information given by the SCDE.
28. The Appellant argued that the Respondent did not establish elements of the tort of defamation. They relied in the case of Mogaka & 3 others v Munene (Civil Appeal E012 of 2022) [2023] KEHC 18194 (KLR) where the court held that a truthful statement is a defence in the case of defamation.
29. A fair comment is a defence in defamation and can be invoked provided that the statement or opinion is based on facts that are true, privileged or otherwise apparent to the audience. The law accepts that opinions may be exaggerated, prejudiced or unreasonable; but what matters is that they are rooted in disclosed or known facts and address a subject that legitimately concerns the public, such as the conduct of public affairs, public figures, governmental affairs, artistic works, business practices or other issues affecting the community.
30. The defence succeeds only if the opinion was honestly held. It is defeated by malice, which arises where a person did not genuinely hold the opinion or used the comment as a vehicle for an improper motive, such as personal spite or a desire to harm a person and unrelated to public interest.
31. In the circumstances of this case, this court is of the opinion that reporting by the Appellant that the 2018 KCSE candidates were registered as private candidates on the basis of information received by the Appellant from the Kikuyu SCDE, and relied upon by the Appellant, was a factual allegation and not an evaluative judgment by the Appellant. The Appellant would in such situation be repeating the SCDE’s factual assertions, not expressing its own opinion based on the disclosed facts.
32. The Appellant also raised the defence of qualified privilege before the trial court. Qualified privilege is a defence in defamation that protects statements made on occasions where the speaker has a legal, moral or social duty or interest in communicating the information and the recipient has a corresponding duty or interest in receiving it.
33. If the circumstances justify the sharing of information - such as reporting misconduct to an authority, communicating risks to those affected or accurately relaying information from official sources - the law recognises that people should be able to speak freely without fear of liability, even if the information later turns out to be false.
34. However, the privilege is qualified, meaning it can be defeated if the claimant proves malice. Malice arises where a person acts with a dominant improper motive, such as spite, personal hostility or a purpose unrelated to the duty or interest that created the privileged occasion.
35. If malice is shown, the protection falls away regardless of the underlying occasion. In essence, qualified privilege balances the need for open communication in certain relationships and contexts with the requirement that such communications should not be abused for malicious ends.
36. Qualified privilege protects communications made where the publisher has a duty or interest in passing on information and the public has a corresponding interest in receiving it. The evidence that was presented before the trial court was that the Appellant, while executing its statutory mandate of managing examinations issue guidelines from time to time for orderly, fair and standardized conduct of national examinations.
37. The SCDE gave information that arose from investigations into matters affecting the operation of the subject school. The SCDE wrote to the Respondent informing him that a team of three officers had visited the school and found that the centre did not exist and the premises purported to be the Respondent’s school was another school by the name Queen Esther Utafiti High School. This court notes that from the trial court’s proceedings, the Respondent admitted that he was running another school by the name Queen Esther Utafiti High School.
38. It is the view of this court that the information by the SCDE being an agent of government, generally has a recognized social, moral and ethical duty to relay accurate information. This court also take cognizance of the existing coordination mechanisms between the various government agencies mandated to manage national examinations across the country and it would pose practical challenges for the appellant to conduct physical quality assurance on each institution. As such, they rely on information from the relevant agencies carrying on their inspection mandates within their areas of jurisdiction. The public, on the other hand, has a legitimate interest in being informed by government agencies or otherwise, about the conduct of school operators including the status of a school.
39. This court is persuaded that the publication made by the Appellant in the circumstances was fair and without malice. The allegations originated from report by the SCDE. The SCDE Report on record states that the school was found with serious irregularities; the signpost at the school bore a different name; and recommended that the candidates be registered as private candidates. It is also noteworthy that the school’s code as an examination centre had been deactivated on different occasions for failing to present candidates for KCSE examination. From the testimony on record, re-activation of the code requires a standards assessment carried out by a team of sub county and county offices to establish its operations. This court finds that the Appellant acted in good-faith, restated the accurate account of what the sub county education officials had officially stated and therefore the privileged occasion arose from the Appellant’s role as the statutory body mandated to manage the conduct of national examinations.
40. This court also notes that the Respondent had been informed through a letter dated 4th March, 2018 from the Ministry of Education addressed to the Respondent advising that the 2018 KCSE candidates from Stonebic High School be registered as private candidates as the existing registration irregularities were being addressed.
41. It is the view of this court that the Appellant acted within the scope of the privileged occasion and a claim for defamation against it cannot succeed. The learned trial Magistrate fell into error in holding the Appellant liable.
42. Having concluded that the Appellant was not liable in tort for defamation, this court will not delve to the issue of damages.
43. The upshot is that the appeal is hereby allowed, judgement of the trial court delivered on the 22nd November, 2024 is hereby set aside.
44. Each party to bear its own costs.
DELIVERED, DATED and SIGNED at NAIROBI this 17TH day of SEPTEMBER, 2026.
Judgment delivered virtually in the presence of:
Ngumbi for the Appellant
Misiani -Respondent
Susan Nzioka – Court Assistant
1. This is an appeal arising from judgment of Hon. S.N Muchungi delivered on 22nd November, 2024 in CMCC at Milimani Civil suit No. 11409 of 2018. The suit originated from a plaint dated 21st December, 2018 filed by Nehemiah Stone Bic Misiani being the Plaintiff in the trial court against the National Examination Council, the Appellant herein.
2. The Appellant presented three grounds of appeal through the Memorandum of Appeal dated 24th March, 2025, as follows:
i. The learned trial Magistrate erred in fact and law by holding the Appellant liable for defamation when it was lawfully carrying out its duties under KNEC Act and Rules by relying on the report by the Sub County Director of Education, which confirmed that the school did not exist on the premises it claimed and hence it was in order for the candidates to be transferred to another centre to sit for the 2018 KCSE examination.
ii. The learned trial Magistrate erred in law and fact when she awarded general damages of Kshs.5,000,000/- and exemplary damages of Kshs. 2,000,000/- which are manifestly high and excessive in the circumstances.
iii. The learned trial Magistrate erred in law and fact when she found that the essential elements of the tort of defamation had been proved by the respondent contrary to the evidence adduced by the parties.
3. By way of a brief background, the Respondent sued the Appellant for general and aggravated/exemplary damages for defamation through the Plaint dated 21st December, 2018. The Respondent pleaded that between 28th February and 20th April, 2018, the Appellant, who had access to the data of the candidates schooling at the Respondent’s school, fraudulently and maliciously manipulated the data and generated a publication that made the Respondent’s candidates appear as private candidates duly registered to write KCSE examination at the Kikuyu private centre.
4. He claimed that the publication together with the photos of the candidates wearing the Respondent’s school uniform was libelous to the Respondent and it meant that the school was operating illegally; the Respondent was a crook operating a school illegally; the Respondent was a conman who collected money from students in form of school fees when the school could not qualify to register students for KCSE examinations; and that the school should be shunned by any right thinking members of the society.
5. The Respondent averred that as a result of the impugned publication, his reputation was injured and he was brought into hatred, disrepute, ridicule, odium and contempt. He also stated that parents lost faith in the school and transferred the students to other schools of which he suffered financial loss.
6. He further stated that the Appellant substituted his school’s code with the one for Kikuyu Private candidate’s centre which automatically transferred the candidates from his school to the private center. He stated that the changes were effected without his knowledge and the parents and students affected did not have knowledge about the same and did not consent to the change.
7. He further stated that the Appellant failed or ignored to respond to the school’s letters regarding registration of the 2018 KCSE examination. The parents became suspicious of the happenings and refused to pay school fees occasioning him financial losses, reputational injury, psychological torture, humiliation to his family and threats to his life which forced him to flee the country.
8. The Respondent further pointed out that he had several standoffs with the Appellant from 2012 which soured his relationship with some education officials within the Sub-County occasioning difficulties and suffering to him and the students.
9. The Appellant on the other hand, pleaded that it is an institution established under the Kenya National Examination Council (KNEC) Act tasked with the responsibility of maintaining examination standards and authorized under the Act to make rules regulating the conduct of examinations and other purposes incidental thereto.
10. In its defence, the Appellant further stated that the Respondent had constantly had issues with the Ministry of Education and KNEC since 2012. It averred that the Respondent was conversant with the process of reactivation of the school code as his school’s code had been deactivated on two occasions for failing to present candidates for KCSE examination.
11. The Appellant further stated that the regulations are put in place to protect learners and parents and for the proper and fair administration of examination. They further stated that they did not act maliciously and did not treat the applicant differently from other examination centers.
12. The Appellant further stated that regulations on registration are standard practice and procedures issued in compliance with the Appellant’s policies and procedures throughout the country and cannot be termed as defamation by the Respondent.
13. PW1 Nehemiah Stone Bic Misiani, testified that he was the proprietor of Stonebic school and he was seeking damages for defamation. He asserted that the school was still in existence but not operational as it stopped operations in 2019. He stated that he was not aware of any complaints on how the schools were being run. He pointed out that he was charged on public health issues regarding health and safety standards in the school. He further stated that Stonebic High School was registered as an examination centre in 2003. He stated that he was conversant with the registration process and management of an examination centre. He also stated that he had another school by the name Queen Esther Girls school which is different from Stonebic school.
14. Mathew Oniego Magasi PW2, stated that he was a parent at Stonebic High School from 2015 to 2018. It is in his statement that he enrolled his granddaughter at the school at it was reputed for high standards of discipline and excellent academic performance. The school had a school refund policy where the school would refund school fees if the student who had scored 300 marks and above failed to join university.
15. He stated that in May 2018, he received information from his wife informing him that she had heard from other parents that Stonebic High School was operating illegally and would not conduct the 2018 KCSE examination. In October, 2018, the director of the School, PW1, invited form four parents to the school and disclosed that KNEC had placed the candidates at Thogoto Primary School as private candidates. It is in his statement that chaos broke out at the meeting as parents confronted PW1 terming him as a conman and demanded a refund of the fees paid.
16. He averred that PW1 prevailed upon him to register the student in another school the following year. He stated that he did not want his child to be registered as a private candidate and agreed on condition that PW1 would cater for all the full cost.
17. Befly J. Bisem, DW1 stated that she was the Deputy Director/ Legal Services of the Appellant herein. She informed the court that the respondent is authorized by the KNEC Act to issue regulations and guidelines on the registration and management of examination centers. She pointed out that the regulations are put in place to protect learners and parents and for proper and fair administration of examination. She further stated that the Appellant did not act maliciously and did not treat the respondent differently from other examination centers.
18. The Appellant further stated that the regulations on registration are standard practice and procedures and issued in compliance with the Appellant’s policies and procedures throughout the country and cannot be termed as defamation by the Respondent.
19. The trial court considered the matter and delivered judgment against the Appellant and awarded the respondent general damages of Kshs. 5,000,000/- and exemplary damages of Kshs. 2,000,000/-.
Determination
20. Directions were subsequently taken that the appeal be canvassed by way of written submissions. The Appellant’s counsel filed their written submissions dated 29th October, 2025 while that of the Respondent are dated 31st October, 2025 which this court has considered.
21. This being a first appeal, the role of this court is to re-evaluate the evidence tendered during trial with a view to making its own conclusions and findings giving room to the fact that the trial court had the advantage of observing the witnesses first hand as they testified. (Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). This court nevertheless appreciates that an appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings (Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348).
22. This appeal as evaluated by this court raises two issues for consideration and determination;
a. Whether the 1st Respondent proved his claim for defamation against the Appellant.
b. Whether the award for general and aggravated damages were excessive.
23. On whether the respondent proved his case on defamation on a balance of probabilities as required by law, Black Law’s Dictionary 8th Edition defines defamation as “the act of harming the reputation of another by making a false statement to a third person.” The Court of Appeal in SMW v ZWM [2015] eKLR, defined a defamatory statement as:
“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”
24. The elements of defamation were outlined by the Court of Appeal in the cases of Selina Patani & another v Dhiranji v Patani [2019] eKLR and Raphael Lukale v Elizabeth Mayabi & another [2018] eKLR as follows:
i. The statement must be defamatory.
ii. The statement must refer to the plaintiff.
iii. The statement must be published by the defendant.
iv. The statement must be false.
25. It is not contested in this case that the Appellant published the transfer of 2018 KCSE candidates and registered them as private candidates and they could be identified as candidates from Stonebic High based on their uniform.
26. The Respondent took the position that the impugned publication implied that he was a dishonest person who engaged in fraud, conmanship and running unregistered school.
27. On its part, the Appellant advanced the defence that the publication was made in good faith based on the information received from Kikuyu Sub-County Director of Education (SCDE) who wrote to the Appellant informing them that the centre did not exist. The Appellant further stated that the publication was made in the course of lawful execution of its statutory mandate based on the information given by the SCDE.
28. The Appellant argued that the Respondent did not establish elements of the tort of defamation. They relied in the case of Mogaka & 3 others v Munene (Civil Appeal E012 of 2022) [2023] KEHC 18194 (KLR) where the court held that a truthful statement is a defence in the case of defamation.
29. A fair comment is a defence in defamation and can be invoked provided that the statement or opinion is based on facts that are true, privileged or otherwise apparent to the audience. The law accepts that opinions may be exaggerated, prejudiced or unreasonable; but what matters is that they are rooted in disclosed or known facts and address a subject that legitimately concerns the public, such as the conduct of public affairs, public figures, governmental affairs, artistic works, business practices or other issues affecting the community.
30. The defence succeeds only if the opinion was honestly held. It is defeated by malice, which arises where a person did not genuinely hold the opinion or used the comment as a vehicle for an improper motive, such as personal spite or a desire to harm a person and unrelated to public interest.
31. In the circumstances of this case, this court is of the opinion that reporting by the Appellant that the 2018 KCSE candidates were registered as private candidates on the basis of information received by the Appellant from the Kikuyu SCDE, and relied upon by the Appellant, was a factual allegation and not an evaluative judgment by the Appellant. The Appellant would in such situation be repeating the SCDE’s factual assertions, not expressing its own opinion based on the disclosed facts.
32. The Appellant also raised the defence of qualified privilege before the trial court. Qualified privilege is a defence in defamation that protects statements made on occasions where the speaker has a legal, moral or social duty or interest in communicating the information and the recipient has a corresponding duty or interest in receiving it.
33. If the circumstances justify the sharing of information - such as reporting misconduct to an authority, communicating risks to those affected or accurately relaying information from official sources - the law recognises that people should be able to speak freely without fear of liability, even if the information later turns out to be false.
34. However, the privilege is qualified, meaning it can be defeated if the claimant proves malice. Malice arises where a person acts with a dominant improper motive, such as spite, personal hostility or a purpose unrelated to the duty or interest that created the privileged occasion.
35. If malice is shown, the protection falls away regardless of the underlying occasion. In essence, qualified privilege balances the need for open communication in certain relationships and contexts with the requirement that such communications should not be abused for malicious ends.
36. Qualified privilege protects communications made where the publisher has a duty or interest in passing on information and the public has a corresponding interest in receiving it. The evidence that was presented before the trial court was that the Appellant, while executing its statutory mandate of managing examinations issue guidelines from time to time for orderly, fair and standardized conduct of national examinations.
37. The SCDE gave information that arose from investigations into matters affecting the operation of the subject school. The SCDE wrote to the Respondent informing him that a team of three officers had visited the school and found that the centre did not exist and the premises purported to be the Respondent’s school was another school by the name Queen Esther Utafiti High School. This court notes that from the trial court’s proceedings, the Respondent admitted that he was running another school by the name Queen Esther Utafiti High School.
38. It is the view of this court that the information by the SCDE being an agent of government, generally has a recognized social, moral and ethical duty to relay accurate information. This court also take cognizance of the existing coordination mechanisms between the various government agencies mandated to manage national examinations across the country and it would pose practical challenges for the appellant to conduct physical quality assurance on each institution. As such, they rely on information from the relevant agencies carrying on their inspection mandates within their areas of jurisdiction. The public, on the other hand, has a legitimate interest in being informed by government agencies or otherwise, about the conduct of school operators including the status of a school.
39. This court is persuaded that the publication made by the Appellant in the circumstances was fair and without malice. The allegations originated from report by the SCDE. The SCDE Report on record states that the school was found with serious irregularities; the signpost at the school bore a different name; and recommended that the candidates be registered as private candidates. It is also noteworthy that the school’s code as an examination centre had been deactivated on different occasions for failing to present candidates for KCSE examination. From the testimony on record, re-activation of the code requires a standards assessment carried out by a team of sub county and county offices to establish its operations. This court finds that the Appellant acted in good-faith, restated the accurate account of what the sub county education officials had officially stated and therefore the privileged occasion arose from the Appellant’s role as the statutory body mandated to manage the conduct of national examinations.
40. This court also notes that the Respondent had been informed through a letter dated 4th March, 2018 from the Ministry of Education addressed to the Respondent advising that the 2018 KCSE candidates from Stonebic High School be registered as private candidates as the existing registration irregularities were being addressed.
41. It is the view of this court that the Appellant acted within the scope of the privileged occasion and a claim for defamation against it cannot succeed. The learned trial Magistrate fell into error in holding the Appellant liable.
42. Having concluded that the Appellant was not liable in tort for defamation, this court will not delve to the issue of damages.
43. The upshot is that the appeal is hereby allowed, judgement of the trial court delivered on the 22nd November, 2024 is hereby set aside.
44. Each party to bear its own costs.
DELIVERED, DATED and SIGNED at NAIROBI this 17TH day of SEPTEMBER, 2026.
Judgment delivered virtually in the presence of:
Ngumbi for the Appellant
Misiani -Respondent
Susan Nzioka – Court Assistant