REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
COMMERCIAL CASE NO. E001 OF 2025
(Coram: Andayi W. F., J.)
STEPHEN MOKAYA...................................................................................................PLAINTIFF
VERSUS
ALI NUR..............................................................................................................1 ST DEFENDANT
HEADLINK PUBLISHERS LIMITED.........................................................2 ND DEFENDANT
ASTIN MATSALIA...........................................................................................3 RD DEFENDANT
WYCLIFFE MUKUZI.......................................................................................4 TH DEFENDANT
JUDGMENT
1. Stephen Mokaya, the plaintiff herein is the Land Registrar, Kwale County and an advocate of the High Court of Kenya. The 2 nd defendant, Headlink Publishers Limited is the owner and the publisher of the Weekly Citizen, a weekly newspaper with circulation in Kenya and East Africa. I leave out the 3 rd and 4 th defendants because they ought not to have been joined to the suit as defendants in the first place. I therefore henceforth refer to the 1 st and 2 nd defendants as the defendants herein.
2. It is the plaintiff’s case against the defendants that in its edition of 31 st March 2025 to 6 th April 2025, Vol. 28 No. 14, the defendants caused to be published in the the Weekly Citizen newspaper at page 11 in the first column the following defamatory article about him:
“Land owners or buyers in Kwale County are parting with a fortune to have land titles processed. Kwale land registrar officers demand money to have titles and green cards signed. In strange ways, even a portion of the land is demanded.
One case in point is that of Kwale/Diani SS parcel of land to fall prey to the tricks as three family members were frustrated by one officer Stephen Mokaya. A letter dated August 1st 2024 to the County Land registrar and copied to the Ethics and Anti-Corruption Commission and the ministry of Lands details the frustrations the family has been through in pursuit of the land title despite having met all legal demands.
From the letter, Mokaya who boast to own chunks of land across Kenya issued a title deed for the property on July 3 2024 after demanding the legally registered owner to appear In person before him. Mokaya went ahead to ask sh 200,000, as a facilitation fee. Remember, a court order that vested the three family member’s ownership of the property upon verification by Mokaya himself.
The titles had already been signed just wanting for the owners to appear. Thereafter there were applications for search of property that were made but they have all been unsuccessful and the applicants were informed that the certificates of official searches could not be issued because the green card has not been signed.
They visited the land registry to enquire about the same on July 20, 2024 and met him briefly outside the land registry in which he confirmed the parcel file for the land. Despite entering their entries on the green card and the serial number for the title deed, he refused to sign the green card and according to the aggrieved owners, started demanding to be allocated a portion of the land.
A number of gullible land owners have fallen to his schemes that are aided by other land officers and land brokers in Kwale. They now want ministry of lands CS Alice Wahome to visit the county and set things straight.”
3. According to the plaintiff, the words, imputed upon the plaintiff’s character and reputation or were meant and were understood to mean by innuendo that:
a. The plaintiff is corrupt.
b. The plaintiff abuses power.
c. The plaintiff disobeys court orders.
d. The plaintiff is unethical and unprincipled.
e. The plaintiff is manipulative.
f. The plaintiff is unworthy of his standing in society.
4. It is plaintiff’s case against the defendants that the said article which referred to him is defamatory of his character as the same are false, malicious and libelous as they presented him to be a corrupt officer who abuses his power and authority, is manipulative and deceptive officer who is greedy, unethical and unprincipled with no regard for court orders. That the publication would be understood by the readers and right thinking members of society to mean that the plaintiff as a conman, fraud and a person of tainted character.
5. It is the plaintiff’s case that the defendants did not attempt to ascertain the veracity of the accusations prior to publishing the article; the defendants failed and/or refused to consult and get the plaintiff’s consent before publishing the article; the defendants knowingly misrepresented and misreported to the public that the plaintiff is a corrupt officer and is involved in unethical and illegal activities at his work place. Further that the defendants published the article without care of the consequences it had on the plaintiff’s image and reputation and therefore deliberately harming and destroying the plaintiff’s reputation and good standing in the society. Further that the defendants failed to contact the plaintiff with a view to exonerating or assisting to clear the adverse impression created of the plaintiff by the said article and that the defendants refused to give the plaintiff an unqualified apology on account of the negative impression created.
6. It is the plaintiff’s further contention that the defendants were motivated by greed for unethical monetary gain in publishing the alleged defamatory article.
7. That otherwise the plaintiff enjoyed an excellent and priceless reputation as a competent, diligent and hardworking public officer but by publication of the alleged defamatory article, he had since exposed to ridicule, hatred, odium and contempt thereby lowering him in the estimation of right thinking members of society from which he has and continues to suffer massive injury to his name, reputation and he has suffered damage, distress and embarrassment.
8. Further that the said article has embarrassed his family, friends and his place of work which is a public office that was dragged into the false article.
9. The plaintiff has therefore sued the defendants in a plaint dated 17 th April 2025 and claims for general, aggravated or exemplary damages for libel from the defendants, together with an order for injunction restraining the defendants from further publishing the alleged defamatory words complained of on the internet newspapers, Facebook, Twitter, YouTube and Whatsapp or any medium as well as a mandatory injunction compelling the defendants to remove from the said words from the said media plus costs and interest and any other or further relief as the court may deem appropriate.
10. The plaintiff supports his prayer for damages relying on the following facts:
a. The Defendants had no evidence to support the assertions and impressions created by the contents published in the article.
b. The publication was reckless with a calculated motive to bring commercial benefit that would outweigh any compensation payable to the plaintiff.
c. The defenndants published the article knowing that it would damage and destroy the plaintiff’s reputation.
d. The publication was at the motion and benefit of the defendants.
11. The suit proceeded by way of formal proof after the defendants were served but failed to enter appearance.
12. The plaintiff testified as PW 1. His evidence was that he is working for the government of Kenya as the Land Registrar, Kwale County. He adopted his witness statement dated 17 th April 2025 as his evidence. The statement basically reiterates the averments in the plaint as captured above.
13. In his testimony before court, he stated that the newspaper scandalized his name by making unverified information. He asserted that his reputation was damaged and sought that the court grants the orders as prayed.
14. The plaintiff produced a copy of the Weekly Citizen newspaper for the period 31 st March 2025 to 6 th April 2025 which contained the publication at page 11 in the first column. The contents are as reproduced above.
15. The plaintiff called one other witness Ezra Nyariki as PW 2. Nyariki also relied on his witness statement dated 3 rd July 2025. He said he is an advocate of the High Court of Kenya practicing within Kwale County. He practices in the areas of litigation and conveyancing. He has practiced for five years handling land transactions and advising clients. In the course of his work, he had interacted with the plaintiff as the Land Registrar Kwale County and he found him to be courteous, diligent and guided by the law in the execution of his duties.
16. PW 2 testified that he read the article published in the Weekly Citizen and reproduced above and he was deeply disturbed by the allegations contained therein concerning the plaintiff. He shunned any dealings with the plaintiff for a while finding him an unreliable person. Two of his clients approached him with copies of the newspaper and inquired from him whether it was safe to transact business at the Kwale Lands registry due to the allegations made against the plaintiff by the newspaper.
17. With the passage of time, PW 2 came to realize that the accusations were unfounded as he did not find any investigative agency such as the Ethics and Anti-Corruption Commission (EACC) to be interested in the matter. He approached the plaintiff who categorically denied the allegations made against him by the newspaper.
18. Learned counsel for the plaintiff filed submissions dated 9 th November 2025 urging the plaintiff’s case.
19. I have considered the pleadings, the evidence and the submissions by the plaintiff. I find the issues for determination to be whether or not the publication complained of bears the meaning attributed to it by the plaintiff, that is whether it is defamatory of the plaintiff, whether the plaintiff’s credibility and reputation has been injured and whether the plaintiff is entitled to damages.
20. In Winfield on Tort , 8 th Edition at page 254, defamation is defined as:
"...the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person..."
21. The ingredients that a plaintiff needs to prove on a balance of probability in a case of defamation are as explained by the Court of Appeal in the case of Swanya v Toyota East Africa Ltd & another [2009] KECA 379 (KLR) where the Court held that:
"For the purpose of deciding a case of defamation, the Court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. It is common ground that in a suit founded on defamation the plaintiff must prove:-
(i) that the matter of which the plaintiff complains is defamatory in character.
(ii) That the defamatory statement or utterance was published by the defendants. The 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..."
22. The principles of the tort of defamation are also extensively discussed in the case of K L v Standard Limited [2014] KEHC 4185 (KLR) by Odunga, J. (as he then was) where the learned Judge stated as follows:
“In my view, the law of defamation is underpinned in our Constitution. Under article 32(1) of the Constitution every person has the right to freedom of conscience, religion, thought, belief and opinion. This Article makes it clear that the freedom to express one’s opinion is a fundamental freedom enshrined in the Constitution. Article 33(1) (a) provides that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, clause (3) provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. This, in my view, is the constitutional fulcrum of the law of defamation. Accordingly, the law of defamation is not just anchored on a statutory enactment but has a constitutional underpinning.
Defamation is a tort and is defined as the publication of a statement which, tends to lower a person in the estimation of right thinking members of the society generally or which tend to make him be shunned or avoided. The defamatory statement is one which has tendency to injure the reputation of the person to whom it refers by lowering him/her in the estimation of the right thinking members of society generally and in particular to cause him/her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem and typical examples are an attack upon the moral character of the plaintiff attributing to him/her any form of disgraceful conduct such as crime, dishonesty, cruelty and so on. Publication is the communication of the words to at least one other person other than the person defamed. Publication to the plaintiff alone is not enough because defamation is an injury to one’s reputation and reputation is what other people think of a person and not his/her own opinion of himself/herself. An action for defamation is essentially an action to compensate a person for the harm done to his/her reputation. Since defamation is not about publication of falsehoods against a person, it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower him/her in the estimation of right thinking members of society generally hence an injurious falsehood may not necessarily be an attack on the plaintiff’s reputation. The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. See J P Machira Vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997.
There are two kinds of defamation; slander and libel. Slander is where a person orally or verbally utters defamatory words of and concerning another person whereas libel is where a person writes of and concerning another person defamatory statements or words. Slander and libel are therefore different forms of defamation. Libel consists of a defamatory statement or representation in permanent form. As opposed to slander, libel is punishable per se without proof of damage and the actual sum to be awarded is “at large” and although a person’s reputation has no actual cash value, the Court is free to form its own estimate of the harm taking into account all the circumstances.
The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. Whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable man would not have understood them in the former sense. However, in libel the words cannot be protected as mere abuse since it is presumed that the defendant had time for reflection before he wrote them. Secondly, the words must refer to the plaintiff. Thirdly, the words must be malicious. Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself. The language used is utterly beyond the facts. The failure to inquire is into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement, was false or did not care whether it be true or false will be evidence of malice.”
23. The defendants did not respondent to the summons served upon them to enter appearance in the suit and therefore there is no defence on record to dispute that the 1 st defendant wrote the article complained of and which contents appear above in the 2 nd defendant’s publication. A copy of the original newspaper was produced before court as evidence.
24. From the contents of the article, it is apparent that the words complained of were meant to and did refer to the plaintiff as he was mentioned by name and job title. The language is clearly intemperate. Although the article refers to the author’s source of information as a letter dated 1 st August 2024, copied to the County Lands Registrar and copied to the EACC and the Ministry of Lands, in the absence of a response to the suit and evidence from the defendants’ the existence of such a letter cannot be vouched for. If there was such a letter, then the author of the article did not bother to verify the correctness of the contents. Moreover, the author went beyond reporting some information that he had received from a third party and introduced the article in a manner of affirmation of the contents in the alleged later by stating that, “Land owners or buyers in Kwale are parting with a fortune to have land titles processed.” He then went on to pick on the alleged letter with the contents against the plaintiff as one such an example. This means he was affirming what he had stated prior. His conclusion that “a number of gullible land owners have fallen to his schemes ...” is further demonstration that the article went beyond reporting what had been alleged elsewhere.
25. There is no doubt that the article was intentionally published of and about the plaintiff by the defendants and so I find.
26. The published article had imputations of criminal conduct in the nature of corruption against the plaintiff. There was nothing to substantiate the allegations and therefore they were falsehoods. I find that the published falsehoods disparaged the reputation of the plaintiff or tended to lower him in the estimation of right thinking members of society generally as testified by PW 2.
27. I am satisfied and find that the plaintiff has proved on a balance of probability that the defendants published defamatory matter about him.
28. The next issue then is what measure of damages would be adequate compensation for the plaintiff’s defamation. In the Australian case of Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 it was held regarding defamation that:
"...a man defamed does not get compensated for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money."
29. The issue is further explained by the Court of Appeal, in C A M v Royal Media Services Limited [2013] KECA 178 (KLR) that:
"No case is like the other. In the exercise of discretion to award damages for defamation, the court has wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones V Pollard (1997) EMLR 233-243 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 Plaintiff's feelings not only from the prominence itself but from the Defendant's conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff's reputation past and future."
30. I have found that the article complained of contained untruthful accusations of a criminal conduct against the plaintiff and that they were published maliciously. There was no response to the plaintiff’s demand for an apology from the defendants to correct the offending content. These were aggravating factors that entitle the plaintiff to aggravated damages.
31. I agree and adopt the holding of the High Court in the case of Chirau Ali Makwere v Royal Media Services Limited [2005] KEHC 2885 (KLR) that:
“... a person in the public arena is a target of comment and can be criticized more openly than a private individual. The comment must however be reasonable and fair and does not extend to making untrue statements about a public figure which impute some grave wrongdoing to him or her of which they are innocent.”
32. The plaintiff having proved his case for defamation against the defendants on a balance of probabilities, he is entitled to general damages.
33. No amount of money can vindicate a damaged reputation but the finding of the court that the publication was defamatory does. The plaintiff is a public officer and to rise to the position of a County Land Registrar he has no doubt put in diligence and hard work. Considering that he continues to deal with members of the public in a sensitive sector of land registration, it means that his reputation must be adequately vindicated for him to continue to have the trust and confidence of persons whom he daily attends to.
34. The plaintiff prayed for general damages of KShs 30,000,000/= and aggravated and exemplary damages of KShs 10,000,000/=. He cited the cases of Samuel Ndung’u Mukunya v Nation Media Group Limited & another [2015] KEHC 7447 (KLR) where an award of KShs 15,000,000/= was made; Martha Karua v. Radio Africa Ltd [2021] eKLR where an award of KShs 20,000,000/= was made and Mwai Kibaki v Nation Media Group Ltd HCCC 620/1996 where an award of KShs 20,000,000/= was made. The plaintiff provided a copy of the case in the Samuel Ndung’u Mukunya case and it is also available on the new.kenyalaw.org website but not for the other two cases.
35. I am persuaded to follow the cases of Patrick Nyoike vs. People Limited [2013] eKLR , where the plaintiff was on 19 th April, 2013 awarded KShs 4,000,000.00 general damages and Kshs 100,000.00 aggravated damages and Ken Odondi & 2 Others vs. James Okoth Omburah T/A Okoth Omburah & Company Advocates [2013] EKLR , where an award of KShs. 7,500,000.00 in general damages was reduced by the Court of Appeal to KShs 4,000,000.00 on 19 th July 2013 while an award of KShs 500,000.00 aggravated damages was upheld. Both these cases are cited and followed in the case of K L v Standard Limited [2014] KEHC 4185 (KLR) where a sum of KShs 4,000,000/= was awarded as general damages and KShs 500,000/= as aggravated damages.
36. In the present case I award the plaintiff KShs 5,000,000/= general damages and KShs 1,500,000/= aggravated damages. Exemplary damages were prayed for as an alternative to the aggravated damages even though they would usually be awarded as a separate head as a punishment to the defendant. I will therefore not award the same.
37. I also grant the order for injunction restraining the defendants from further publishing the alleged defamatory words complained of against the plaintiff.
38. The plaintiff shall also get the costs of the suit.
39. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, MicrosoftTeams this 12 th day of August 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the plaintiff.
... for the defendant
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
HC Cc. no. e005/202511/RTA-LIABILITY & DAMAGES
IN THE HIGH COURT OF KENYA AT KWALE
COMMERCIAL CASE NO. E001 OF 2025
(Coram: Andayi W. F., J.)
STEPHEN MOKAYA...................................................................................................PLAINTIFF
VERSUS
ALI NUR..............................................................................................................1 ST DEFENDANT
HEADLINK PUBLISHERS LIMITED.........................................................2 ND DEFENDANT
ASTIN MATSALIA...........................................................................................3 RD DEFENDANT
WYCLIFFE MUKUZI.......................................................................................4 TH DEFENDANT
JUDGMENT
1. Stephen Mokaya, the plaintiff herein is the Land Registrar, Kwale County and an advocate of the High Court of Kenya. The 2 nd defendant, Headlink Publishers Limited is the owner and the publisher of the Weekly Citizen, a weekly newspaper with circulation in Kenya and East Africa. I leave out the 3 rd and 4 th defendants because they ought not to have been joined to the suit as defendants in the first place. I therefore henceforth refer to the 1 st and 2 nd defendants as the defendants herein.
2. It is the plaintiff’s case against the defendants that in its edition of 31 st March 2025 to 6 th April 2025, Vol. 28 No. 14, the defendants caused to be published in the the Weekly Citizen newspaper at page 11 in the first column the following defamatory article about him:
“Land owners or buyers in Kwale County are parting with a fortune to have land titles processed. Kwale land registrar officers demand money to have titles and green cards signed. In strange ways, even a portion of the land is demanded.
One case in point is that of Kwale/Diani SS parcel of land to fall prey to the tricks as three family members were frustrated by one officer Stephen Mokaya. A letter dated August 1st 2024 to the County Land registrar and copied to the Ethics and Anti-Corruption Commission and the ministry of Lands details the frustrations the family has been through in pursuit of the land title despite having met all legal demands.
From the letter, Mokaya who boast to own chunks of land across Kenya issued a title deed for the property on July 3 2024 after demanding the legally registered owner to appear In person before him. Mokaya went ahead to ask sh 200,000, as a facilitation fee. Remember, a court order that vested the three family member’s ownership of the property upon verification by Mokaya himself.
The titles had already been signed just wanting for the owners to appear. Thereafter there were applications for search of property that were made but they have all been unsuccessful and the applicants were informed that the certificates of official searches could not be issued because the green card has not been signed.
They visited the land registry to enquire about the same on July 20, 2024 and met him briefly outside the land registry in which he confirmed the parcel file for the land. Despite entering their entries on the green card and the serial number for the title deed, he refused to sign the green card and according to the aggrieved owners, started demanding to be allocated a portion of the land.
A number of gullible land owners have fallen to his schemes that are aided by other land officers and land brokers in Kwale. They now want ministry of lands CS Alice Wahome to visit the county and set things straight.”
3. According to the plaintiff, the words, imputed upon the plaintiff’s character and reputation or were meant and were understood to mean by innuendo that:
a. The plaintiff is corrupt.
b. The plaintiff abuses power.
c. The plaintiff disobeys court orders.
d. The plaintiff is unethical and unprincipled.
e. The plaintiff is manipulative.
f. The plaintiff is unworthy of his standing in society.
4. It is plaintiff’s case against the defendants that the said article which referred to him is defamatory of his character as the same are false, malicious and libelous as they presented him to be a corrupt officer who abuses his power and authority, is manipulative and deceptive officer who is greedy, unethical and unprincipled with no regard for court orders. That the publication would be understood by the readers and right thinking members of society to mean that the plaintiff as a conman, fraud and a person of tainted character.
5. It is the plaintiff’s case that the defendants did not attempt to ascertain the veracity of the accusations prior to publishing the article; the defendants failed and/or refused to consult and get the plaintiff’s consent before publishing the article; the defendants knowingly misrepresented and misreported to the public that the plaintiff is a corrupt officer and is involved in unethical and illegal activities at his work place. Further that the defendants published the article without care of the consequences it had on the plaintiff’s image and reputation and therefore deliberately harming and destroying the plaintiff’s reputation and good standing in the society. Further that the defendants failed to contact the plaintiff with a view to exonerating or assisting to clear the adverse impression created of the plaintiff by the said article and that the defendants refused to give the plaintiff an unqualified apology on account of the negative impression created.
6. It is the plaintiff’s further contention that the defendants were motivated by greed for unethical monetary gain in publishing the alleged defamatory article.
7. That otherwise the plaintiff enjoyed an excellent and priceless reputation as a competent, diligent and hardworking public officer but by publication of the alleged defamatory article, he had since exposed to ridicule, hatred, odium and contempt thereby lowering him in the estimation of right thinking members of society from which he has and continues to suffer massive injury to his name, reputation and he has suffered damage, distress and embarrassment.
8. Further that the said article has embarrassed his family, friends and his place of work which is a public office that was dragged into the false article.
9. The plaintiff has therefore sued the defendants in a plaint dated 17 th April 2025 and claims for general, aggravated or exemplary damages for libel from the defendants, together with an order for injunction restraining the defendants from further publishing the alleged defamatory words complained of on the internet newspapers, Facebook, Twitter, YouTube and Whatsapp or any medium as well as a mandatory injunction compelling the defendants to remove from the said words from the said media plus costs and interest and any other or further relief as the court may deem appropriate.
10. The plaintiff supports his prayer for damages relying on the following facts:
a. The Defendants had no evidence to support the assertions and impressions created by the contents published in the article.
b. The publication was reckless with a calculated motive to bring commercial benefit that would outweigh any compensation payable to the plaintiff.
c. The defenndants published the article knowing that it would damage and destroy the plaintiff’s reputation.
d. The publication was at the motion and benefit of the defendants.
11. The suit proceeded by way of formal proof after the defendants were served but failed to enter appearance.
12. The plaintiff testified as PW 1. His evidence was that he is working for the government of Kenya as the Land Registrar, Kwale County. He adopted his witness statement dated 17 th April 2025 as his evidence. The statement basically reiterates the averments in the plaint as captured above.
13. In his testimony before court, he stated that the newspaper scandalized his name by making unverified information. He asserted that his reputation was damaged and sought that the court grants the orders as prayed.
14. The plaintiff produced a copy of the Weekly Citizen newspaper for the period 31 st March 2025 to 6 th April 2025 which contained the publication at page 11 in the first column. The contents are as reproduced above.
15. The plaintiff called one other witness Ezra Nyariki as PW 2. Nyariki also relied on his witness statement dated 3 rd July 2025. He said he is an advocate of the High Court of Kenya practicing within Kwale County. He practices in the areas of litigation and conveyancing. He has practiced for five years handling land transactions and advising clients. In the course of his work, he had interacted with the plaintiff as the Land Registrar Kwale County and he found him to be courteous, diligent and guided by the law in the execution of his duties.
16. PW 2 testified that he read the article published in the Weekly Citizen and reproduced above and he was deeply disturbed by the allegations contained therein concerning the plaintiff. He shunned any dealings with the plaintiff for a while finding him an unreliable person. Two of his clients approached him with copies of the newspaper and inquired from him whether it was safe to transact business at the Kwale Lands registry due to the allegations made against the plaintiff by the newspaper.
17. With the passage of time, PW 2 came to realize that the accusations were unfounded as he did not find any investigative agency such as the Ethics and Anti-Corruption Commission (EACC) to be interested in the matter. He approached the plaintiff who categorically denied the allegations made against him by the newspaper.
18. Learned counsel for the plaintiff filed submissions dated 9 th November 2025 urging the plaintiff’s case.
19. I have considered the pleadings, the evidence and the submissions by the plaintiff. I find the issues for determination to be whether or not the publication complained of bears the meaning attributed to it by the plaintiff, that is whether it is defamatory of the plaintiff, whether the plaintiff’s credibility and reputation has been injured and whether the plaintiff is entitled to damages.
20. In Winfield on Tort , 8 th Edition at page 254, defamation is defined as:
"...the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person..."
21. The ingredients that a plaintiff needs to prove on a balance of probability in a case of defamation are as explained by the Court of Appeal in the case of Swanya v Toyota East Africa Ltd & another [2009] KECA 379 (KLR) where the Court held that:
"For the purpose of deciding a case of defamation, the Court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. It is common ground that in a suit founded on defamation the plaintiff must prove:-
(i) that the matter of which the plaintiff complains is defamatory in character.
(ii) That the defamatory statement or utterance was published by the defendants. The 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..."
22. The principles of the tort of defamation are also extensively discussed in the case of K L v Standard Limited [2014] KEHC 4185 (KLR) by Odunga, J. (as he then was) where the learned Judge stated as follows:
“In my view, the law of defamation is underpinned in our Constitution. Under article 32(1) of the Constitution every person has the right to freedom of conscience, religion, thought, belief and opinion. This Article makes it clear that the freedom to express one’s opinion is a fundamental freedom enshrined in the Constitution. Article 33(1) (a) provides that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, clause (3) provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. This, in my view, is the constitutional fulcrum of the law of defamation. Accordingly, the law of defamation is not just anchored on a statutory enactment but has a constitutional underpinning.
Defamation is a tort and is defined as the publication of a statement which, tends to lower a person in the estimation of right thinking members of the society generally or which tend to make him be shunned or avoided. The defamatory statement is one which has tendency to injure the reputation of the person to whom it refers by lowering him/her in the estimation of the right thinking members of society generally and in particular to cause him/her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem and typical examples are an attack upon the moral character of the plaintiff attributing to him/her any form of disgraceful conduct such as crime, dishonesty, cruelty and so on. Publication is the communication of the words to at least one other person other than the person defamed. Publication to the plaintiff alone is not enough because defamation is an injury to one’s reputation and reputation is what other people think of a person and not his/her own opinion of himself/herself. An action for defamation is essentially an action to compensate a person for the harm done to his/her reputation. Since defamation is not about publication of falsehoods against a person, it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower him/her in the estimation of right thinking members of society generally hence an injurious falsehood may not necessarily be an attack on the plaintiff’s reputation. The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. See J P Machira Vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997.
There are two kinds of defamation; slander and libel. Slander is where a person orally or verbally utters defamatory words of and concerning another person whereas libel is where a person writes of and concerning another person defamatory statements or words. Slander and libel are therefore different forms of defamation. Libel consists of a defamatory statement or representation in permanent form. As opposed to slander, libel is punishable per se without proof of damage and the actual sum to be awarded is “at large” and although a person’s reputation has no actual cash value, the Court is free to form its own estimate of the harm taking into account all the circumstances.
The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. Whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable man would not have understood them in the former sense. However, in libel the words cannot be protected as mere abuse since it is presumed that the defendant had time for reflection before he wrote them. Secondly, the words must refer to the plaintiff. Thirdly, the words must be malicious. Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself. The language used is utterly beyond the facts. The failure to inquire is into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement, was false or did not care whether it be true or false will be evidence of malice.”
23. The defendants did not respondent to the summons served upon them to enter appearance in the suit and therefore there is no defence on record to dispute that the 1 st defendant wrote the article complained of and which contents appear above in the 2 nd defendant’s publication. A copy of the original newspaper was produced before court as evidence.
24. From the contents of the article, it is apparent that the words complained of were meant to and did refer to the plaintiff as he was mentioned by name and job title. The language is clearly intemperate. Although the article refers to the author’s source of information as a letter dated 1 st August 2024, copied to the County Lands Registrar and copied to the EACC and the Ministry of Lands, in the absence of a response to the suit and evidence from the defendants’ the existence of such a letter cannot be vouched for. If there was such a letter, then the author of the article did not bother to verify the correctness of the contents. Moreover, the author went beyond reporting some information that he had received from a third party and introduced the article in a manner of affirmation of the contents in the alleged later by stating that, “Land owners or buyers in Kwale are parting with a fortune to have land titles processed.” He then went on to pick on the alleged letter with the contents against the plaintiff as one such an example. This means he was affirming what he had stated prior. His conclusion that “a number of gullible land owners have fallen to his schemes ...” is further demonstration that the article went beyond reporting what had been alleged elsewhere.
25. There is no doubt that the article was intentionally published of and about the plaintiff by the defendants and so I find.
26. The published article had imputations of criminal conduct in the nature of corruption against the plaintiff. There was nothing to substantiate the allegations and therefore they were falsehoods. I find that the published falsehoods disparaged the reputation of the plaintiff or tended to lower him in the estimation of right thinking members of society generally as testified by PW 2.
27. I am satisfied and find that the plaintiff has proved on a balance of probability that the defendants published defamatory matter about him.
28. The next issue then is what measure of damages would be adequate compensation for the plaintiff’s defamation. In the Australian case of Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 it was held regarding defamation that:
"...a man defamed does not get compensated for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money."
29. The issue is further explained by the Court of Appeal, in C A M v Royal Media Services Limited [2013] KECA 178 (KLR) that:
"No case is like the other. In the exercise of discretion to award damages for defamation, the court has wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones V Pollard (1997) EMLR 233-243 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 Plaintiff's feelings not only from the prominence itself but from the Defendant's conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff's reputation past and future."
30. I have found that the article complained of contained untruthful accusations of a criminal conduct against the plaintiff and that they were published maliciously. There was no response to the plaintiff’s demand for an apology from the defendants to correct the offending content. These were aggravating factors that entitle the plaintiff to aggravated damages.
31. I agree and adopt the holding of the High Court in the case of Chirau Ali Makwere v Royal Media Services Limited [2005] KEHC 2885 (KLR) that:
“... a person in the public arena is a target of comment and can be criticized more openly than a private individual. The comment must however be reasonable and fair and does not extend to making untrue statements about a public figure which impute some grave wrongdoing to him or her of which they are innocent.”
32. The plaintiff having proved his case for defamation against the defendants on a balance of probabilities, he is entitled to general damages.
33. No amount of money can vindicate a damaged reputation but the finding of the court that the publication was defamatory does. The plaintiff is a public officer and to rise to the position of a County Land Registrar he has no doubt put in diligence and hard work. Considering that he continues to deal with members of the public in a sensitive sector of land registration, it means that his reputation must be adequately vindicated for him to continue to have the trust and confidence of persons whom he daily attends to.
34. The plaintiff prayed for general damages of KShs 30,000,000/= and aggravated and exemplary damages of KShs 10,000,000/=. He cited the cases of Samuel Ndung’u Mukunya v Nation Media Group Limited & another [2015] KEHC 7447 (KLR) where an award of KShs 15,000,000/= was made; Martha Karua v. Radio Africa Ltd [2021] eKLR where an award of KShs 20,000,000/= was made and Mwai Kibaki v Nation Media Group Ltd HCCC 620/1996 where an award of KShs 20,000,000/= was made. The plaintiff provided a copy of the case in the Samuel Ndung’u Mukunya case and it is also available on the new.kenyalaw.org website but not for the other two cases.
35. I am persuaded to follow the cases of Patrick Nyoike vs. People Limited [2013] eKLR , where the plaintiff was on 19 th April, 2013 awarded KShs 4,000,000.00 general damages and Kshs 100,000.00 aggravated damages and Ken Odondi & 2 Others vs. James Okoth Omburah T/A Okoth Omburah & Company Advocates [2013] EKLR , where an award of KShs. 7,500,000.00 in general damages was reduced by the Court of Appeal to KShs 4,000,000.00 on 19 th July 2013 while an award of KShs 500,000.00 aggravated damages was upheld. Both these cases are cited and followed in the case of K L v Standard Limited [2014] KEHC 4185 (KLR) where a sum of KShs 4,000,000/= was awarded as general damages and KShs 500,000/= as aggravated damages.
36. In the present case I award the plaintiff KShs 5,000,000/= general damages and KShs 1,500,000/= aggravated damages. Exemplary damages were prayed for as an alternative to the aggravated damages even though they would usually be awarded as a separate head as a punishment to the defendant. I will therefore not award the same.
37. I also grant the order for injunction restraining the defendants from further publishing the alleged defamatory words complained of against the plaintiff.
38. The plaintiff shall also get the costs of the suit.
39. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, MicrosoftTeams this 12 th day of August 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the plaintiff.
... for the defendant
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
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ENDNOTES
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HC Cc. no. e005/202511/RTA-LIABILITY & DAMAGES