REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
APPALLATE DIVISION
CIVIL APPEAL NO. E011 OF 2025
SURAW MOHAMMED ISSACK……………………………………..APPELLANT
VERSUS
ABDIWAHAB NURA ISSACK……………………………………..RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT/DECREE OF HON W.K CHERUIYOT PRINCIPAL MAGISTRATE DELIVERED ON 15 th OCTOBER 2025 IN MOYALE PMCC CASE NO. E007 OF 2024)
BETWEEN
ABDIWAHAB NURA ISSACK…………………………………….…. PLAINTIFF
VERSUS
SURAW MOHAMED ISSACK………………………………………DEFENDANT
JUDGEMENT
A. INTRODUCTION
1. This appeal is filed challenging the Judgement/decree of Honourable W.K Cheruiyot (PM) dated 15 th October 2025, issued in Moyale PMCC No E007 of 2024 , where he entered judgement in favour of the respondent to the tune of Kshs.2,000,000/= as general damages for injury to his reputation and further issued orders of Mandatory injunction restraining the appellant from further disseminating or causing to be disseminated any defamatory material of or concerning the respondent, who was also awarded the costs of the suit.
2. The background hereto was that vide his plaint dated 13 th September 2024, the respondent sued the Appellant seeking inter alia an order of permanent injunction restraining the appellant from further disseminating or causing to be disseminated any defamatory material of or concerning him or at all, general damages, interest thereon, costs of the suit and any other relief the court deems fit to grant.
3. The respondent averred that he was a registered nurse and Senior Nursing Officer stationed at Takaba Referral Hospital in Mandera County. On or about 11 th August 2024, while participating in a WhatsApp forum known as BK SUPERSTAR comprising approximately 221 members, he posted a video message on the subject of maturity. In response thereto, the Appellant immediately responded to his post by texting, without provocation or just cause, malicious and defamatory statements or words: “Khalbi Curur (shallow minded), fake nurse with fake degree, your capacity of understanding is very low. Umejifungulia mlango usilie na konde and will reply you very soon and be mos mos.” It was further pleaded that the Appellant forwarded the same words in another social forum styled Fulamo Family Forum , thereby aggravating the injury caused to the Respondent’s reputation.
4. The two WhatsApp forums composed of persons, who were mainly from Tabaka sub county within Mandera county, where he lived and worked, and following the said posting, people within the aforementioned group, others not in the said WhatsApp group called him and others inquired verbally with the intention to verify the said allegations, and whether indeed if it was true that he had a fake degree. The appellant’s post and conduct were clearly unwarranted and it could be safely presumed that he intended to malign and cause him public embarrassment, loss of reputation, mental anguish, loss of self-confidence and without doubt harmed his reputation and character.
5. Despite demand and notice of intention to sue, the appellant had failed to retract his statement and/or refused to issue an apology and the respondent, thus prayed that the orders sought be granted.
B. THE RESPONSE
6. The appellant, upon being served, did file his Statement of Defence dated 11 th February 2025, where he denied in toto all the averments made by the respondent in his plaint and put him to strict proof thereof. Further, he particularly, denied publishing any statement concerning the respondent on any public forum and in the alternative stated that if any such publication was made, (which was still denied), then the same did not target the respondent nor maligned him in any manner. The particulars of damages as itemized in the plaint too was vehemently denied and the respondent was put to strict proof thereof.
C. FACTS AT TRIAL
7. PW1, Abdiwahab Nura Issack, the Respondent herein, adopted his witness statement, and the list of documents relied too, was produced as exhibits. He rehashed the matters pleaded and maintained that the words published were calculated to disparage his professional standing as a registered nurse and caused him to suffer embarrassment, loss of clients at his clinic, and psychological distress.
8. On crossexamination, the respondent maitained that he was a respected member of the community, a family man, and proprietor of Mutaz Medical Clinic. Previously in 2017 and 2019, the appellant had defamed him, but they had resolved the matter before community elders and the appellant had apologized and vowed not to repeat the same. He reiterated that the defamatory words had led him to suffer loss of clients, inability to pay staff, and social stigma, though he conceded that he had not filed financial statements to prove financial loss. He further maintained that the defamatory publication, were widely circulated in different forums and understood by friends, colleagues and clients to refer to him personally and thus had suffered loss and damage for which he should be compensated.
9. In re-examination, the respondent affirmed his evidence in chief and emphasized that he was a respected member of the community and was commonly referred to as Daktari, and that it was clear that the appellant’s comments were directed towards him, since he was the only nurse in the WhatsApp group in question. Members of the said groups had also urged the appellant to apologize, and he too had served the appellant with a demand letter, but the appellant had refused to withdraw his remarks and/or to apologize. He thus urged the court to award him damages for the reputational injury suffered.
10. PW2, Abdulrahim Abdow Mohamed, a nurse at Takaba SubCounty Hospital, adopted his witness statement as evidence in chief. He testified that he had known the Respondent for many years, had worked with him on parttime basis at Mutaz Medical Clinic, and attested to his good reputation prior to the incident. He stated that following the publication, the Respondent’s reputation was injured, clients attended to at the clinic had reduced, and that the Respondent suffered distress. On crossexamination, PW2 admitted that he was not a member of the WhatsApp groups in question and had only been shown the posts by the respondent and other common friends. He maintained that the Respondent was a registered nurse of good standing and that the publication had caused him to suffer loss of reputation and clients since his qualification was put in doubt. He was also not aware of any other factors that lead to loss of clients to his clinic facility.
11. The Appellant, DW1 Nur Mohamed Issack, adopted his witness statement and testified that he was a police officer residing in Banisa SubCounty, Mandera County, but was stationed in Meru County. He confirmed that the respondent was his cousin, but did not know of his trade and/or profession since they last met over 40 years ago. On cross examination, he admitted being a member of the BK Superstar and Fulamo forum, which was their clan WhatsApp group, his phone number was 0725113277, but added that he had been removed temporarily from the said forums. In relation to the impugned post, he confirmed that he responded to the shared clip titled, “Maturity”, but denied that the impugned words (his response) were directed at the Respondent.
12. He emphasized that the group had several nurses and explained the phrase “ Galbi arur ” was a Somali expression meaning “ immature child ” and reiterated that the words, “fake nurse” too was not directed at the respondent, since he did not know the person who had sent the said clip, and/or his profession. He further clarified that he did not know where the respondent worked and had never had any issue with him before, not even before the clan elders as alleged. Finally, he confirmed that upon being served with the demand letter, he had shared the same on the WhatsApp group to inquire on who was suing him.
13. Under reexamination, the appellant admitted that he was the one who posted the “impugned publication”, in response to the clip talking about maturity and how people behave, since the same was an indirect abuse. He reiterated that he had no quarrel with the Respondent, and maintained that they had not disagreed before.
D. TRIAL COURT JUDGEMENT
14. The learned trial magistrate, having considered the pleadings, oral testimony, documentary evidence, and submissions of counsels, addressed the central issue of whether the words complained of were defamatory. The court noted that the Appellant admitted posting the impugned words in the WhatsApp forum where both parties were members, though he claimed they were general and not directed at the Respondent. The magistrate held that the words “fake nurse with a fake degree” in their ordinary meaning suggested that the Respondent was unqualified, falsely held himself out as a nurse, and had acquired his credentials in a questionable manner. Such words, unless justified, were capable of lowering the Respondent in the estimation of rightthinking members of society, exposing him to ridicule, contempt, and being shunned by the public.
15. On the question of reference, the trial court held that the Appellant had tagged the Respondent’s post and responded directly to it, thereby making it clear that the words were of and concerning the Respondent. The learned magistrate rejected the Appellant’s contention that the words were general, noting that he was unable to name any other nurses in the WhatsApp group. The court further observed that other members of the forum had urged the Appellant to withdraw the offending statement, confirming that the words were understood to refer to the Respondent.
16. On publication, the Appellant had admitted to making the offending post, and the court had found that the words were indeed published in both the BK Superstar and Fulamo Family Forum groups . On falsity, the court held that the Respondent had testified to being a registered nurse employed by the government and had produced his registration details, while the Appellant tendered no evidence to support his allegation that the Respondent was a “fake nurse with a fake degree.” The defence was therefore dismissed as unsound.
17. On quantum, the court considered the Respondent’s testimony that he suffered professional damage, loss of clients, and financial harm. Guided by precedents including Nation Media Group Ltd v Nanjira [2024] KEHC 2576, Tipper v Rosborg [2024] KEHC 14010, and Ambe v Onyango [2024] KEHC 6138 , the magistrate held that a successful plaintiff in a defamation action is entitled to general compensatory damages to vindicate his reputation and compensate for distress, hurt, and humiliation. The court awarded the Respondent general damages of Kshs.2,000,000/= for injury to his reputation, issued a permanent injunction restraining the Appellant from further disseminating defamatory material concerning the Respondent, and awarded costs of the suit.
E. THE APPEAL
18. Being aggrieved by the said judgement/ decree, the appellant filed his memorandum of appeal and raised the following grounds of appeal namely that;
a) The learned trial magistrate erred in fact and in law by finding that there was publication of the alleged defamatory statement to third parties when there was no proof of publication beyond the Respondent himself.
b) The learned trial magistrate erred in fact and in law by finding that the alleged defamatory statement was false when no documentary or other evidence was produced by the Respondent to that effect.
c) The learned trial magistrate erred in fact and in law by finding that the alleged defamatory statement referred to the Respondent.
d) The learned trial magistrate erred in law and in fact by misapplying the law on defamation generally and in awarding the reliefs granted in the impugned judgment.
19. The Appellant therefore prayed that this Honourable Court be pleased to set aside the impugned judgment and to dismiss the primary suit with costs
F. PARTIES SUBMISSIONS
i) Appellant’s Submissions
20. The Appellant, relied on his submission dated 3 rd March 2026, where he urged this court to find that the learned trial magistrate had erred in both law and fact to hold that he was liable for defaming the respondent, when it was not demonstrated that he was the only nurse in the said forum, nor was there any proof that the words published were understood to exclusively refer to the Respondent. In short, identification was inferred rather than proved, contrary to the principle that defamation, required clear evidence that the words complained off were understood to refer to the claimant. Reliance was placed on Matumbi Vs Tanui (Civil Appeal No 67 of 2020), (2026) KECA 253 (klr) & MWY v ZWN [2015] eKLR, where the High Court held that identifiability must be established by evidence.
21. On falsity, the Appellant submitted that the Respondent had failed to discharge the burden of proof. It was argued that the trial court erroneously presumed falsity once it found the words were defamatory, thereby reversing the burden of proof. Counsel emphasized that documentary proof of professional qualifications was essential, yet the Respondent relied solely on oral testimony without producing certificates or registration documents from the Nursing Council. Reference was made to case of Matumbi (Supra) which reaffirmed that falsity is a substantive element of defamation and must be strictly proved.
22. On whether the respondent’s reputation had been lowered before right thinking members of the society, the appellant emphasized that the publication and its defamatory effects must be proved as facts and further noted that defamation protected reputation and not feelings, annoyance or professional rivalry. While the respondent had alleged that the publication had resulted in less clients coming to his clinic, he had admitted in cross examination that he had not produced financial statements, attendance records or tax returns to prove the same. In absence of objective evidence of reputational damage, the finding that his standing had been lowered before his peers could not be sustained.
23. On whether malice was proved, the appellant averred that malice could not be presumed from publication alone and had to be proved by direct evidence or inferred from conduct demonstrating know edge of falsity or reckless disregard for truth. In the present case, he had explained the context in which the words were posted and denied targeting the respondent. There was also no evidence to demonstrate that the appellant knew the statement made to be false nor had he acted with reckless disregard for truth. Thus the trial Magistrates finding of malice was speculative and unsupported by evidentiary foundation. Reliance was placed in Nation Media Group Ltd Vs Alfred .N. Mutua (2017) eKLR for emphasis .
24. On damages, the Appellant submitted that the award of Kshs . 2,000,000/= was excessive and disproportionate given the limited scope of publication within WhatsApp groups as opposed to national broadcast. Counsel relied on Matumbi (Supra) , where the Court of Appeal underscored that damages must reflect cogent evidence of reputational injury and proportionality. It was argued that the Respondent had not produced evidence of quantifiable loss, and therefore the award was speculative. The Appellant urged the court to allow the appeal, set aside the judgment, and to dismiss the primary suit with costs, or in the alternative, substantially reduce the damages awarded.
ii) Respondent’s Submissions
25. The Respondent, on his part, relied on his submissions dated 7 th May 2026, wherein he urged this court to uphold the trial court’s findings and to dismissal of this appeal. On publication, it was submitted that the Appellant admitted to posting the impugned words in two WhatsApp forums — BK Superstar with 221 members and Fulamo Family Forum with 80 members thereby reaching nearly 300 persons. This satisfied the legal element of publication, as the words were disseminated to third parties beyond the Respondent.
26. On falsity, the Respondent submitted that he testified to being a registered nurse employed by the government and gave his registration number. PW2 corroborated this fact, which was adequate proof that he was indeed a qualified nurse, thereby shifted the evidentiary burden on the Appellant to prove his allegation that he was a “ fake nurse with a fake degree. ” The trial court was therefore correct in finding that the allegation made was false.
27. On reference, the Respondent submitted that the words were clearly directed at him, as they were posted in response to his video on maturity and tagged to his post. He further noted that the Appellant was unable to name any other nurse in the groups, confirming that the words referred to him and besmirched his reputation before his peers and family. The trial court’s inference was therefore proper.
28. Finally on damages, the Respondent submitted that the award of Kshs.2,000,000/= was justified, guided by precedents such as Nation Media Group Ltd v Naniira (Civil Appeal E030 of 2021) [2021] KEHC 2576 (KLR) and John v MGN Ltd (1997) , which affirmed that compensatory damages in defamation must vindicate reputation and account for distress and humiliation. Counsel argued that the defamatory statements had an adverse effect on the Respondent’s clinic, leading to loss of clients and diminished professional standing. It was further submitted that this was not the first time the Appellant had defamed the Respondent, making the award appropriate.
29. The Respondent therefore urged the court to dismiss this appeal with costs, terming it frivolous and vexatious.
G. ANALYSIS AND DETRMINATION
30. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123.
31. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of Section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316.
32. The issues that arise in this Appeal are whether the trial court correctly appreciated the facts and the law to arrive at its decision that the Appellant had published the impugned words to third parties; whether the court erred in finding that the words referred to the Respondent when no independent witness from the WhatsApp forums testified to that effect; whether the trial court misdirected itself by presuming falsity of the words without requiring strict documentary proof of the Respondent’s professional qualifications; whether the court misapplied the principles of defamation in dismissing the Appellant’s defence of freedom of expression and in awarding general damages of Kshs.2,000,000/= and finally issuing a permanent injunction in circumstances where the scope of publication was limited.
33. The Appellant admitted to posting the impugned words in the WhatsApp forums where both parties were members. The central question is whether the trial court correctly appreciated the facts and the law in finding that those words amounted to actionable defamation.
34. In Matumbi v Tanui (Civil Appeal 67 of 2020) [2026] KECA 253 (KLR) (13 February 2026) (Judgment) Neutral citation: [2026] KECA 253 (KLR) the court of appeal succulently summarized defamation jurisprudence as follows;
In Kenya, the tort of defamation is now well settled, both as a matter of common law and as informed by the Constitution. In an action for defamation, a claimant must establish that the defendant published to a third party a statement of fact which referred to the claimant, was defamatory in nature in that it tended to lower the claimant’s reputation in the estimation of right-thinking members of society, was false, and was published with the requisite degree of fault . Once liability is established, the court must assess damages with due regard to the nature and gravity of the defamation, the reach and mode of publication, the conduct of the defendant before and after publication, and the need to vindicate reputation while, at the same time, respecting the constitutional guarantee of freedom of expression under Article 33 of the Constitution
Flowing from this formulation, a plaintiff in a defamation action must establish the following five elements.
(i) First, defamatory meaning. A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society generally, causes the claimant to be shunned or avoided, or exposes the claimant to hatred, contempt, or ridicule. This formulation, drawn from Gatley on Libel and Slander , has been repeatedly cited with approval by various courts. For example, in Musikari Kombo v Royal Media Services Ltd [2018] eKLR, this reaffirmed that the test is an objective one, to be applied from the standpoint of ordinary, reasonable members of society, and not from the subjective sensitivities of the claimant. Kenyan courts have further emphasized that the impugned words must be assessed as a whole, in their full context, and according to their natural and ordinary meaning as understood by reasonable readers or listeners, rather than through strained or technical interpretation. See also Miguna Miguna v Standard Group Ltd & 4 Others [2017] eKLR (HC) .
(ii) Secondly, reference to the plaintiff. The claimant need not be expressly named in the publication. It suffices if reasonable persons acquainted with the claimant would understand the words complained of to refer to him or her. The governing consideration is identifiability, not universality of recognition. In SMW v ZWM [2015] eKLR , the High Court held that defamation is established where those who know the plaintiff can, on a reasonable reading of the publication, identify him or her as the person referred to. What matters is that the publication points, directly or by implication, to the claimant.
(iii) Thirdly, publication to a third party. To succeed in a defamation claim, the plaintiff must demonstrate that the defamatory words were published, in the sense that they were communicated to at least one person other than the plaintiff, since defamation is concerned with injury to reputation in the eyes of others and not with private insult or affront. In Nation Media Group Ltd v Alfred Mutua [2017] eKLR , this Court underscored that publication through mass media substantially aggravates defamation because of its reach, repetition, and permanence, particularly in the digital age. Kenyan courts have also recognized that each publication, including online republication, may constitute a distinct cause of action, subject to limitation principles. Closely related to publication is the question of actionability and proof of injury, and here Kenyan law retains the classical common-law distinction between libel and slander Libel, being defamation in permanent form — whether written, printed, broadcast, or digitally published — is actionable per se. In cases of libel, once the plaintiff establishes the other elements of defamation, injury to reputation is presumed, and the plaintiff is not required to prove actual damage in order to be entitled to general damages. This position has been affirmed in Kenyan jurisprudence, including in Selina Patani &Another v Dhiranji V . Patani[2019] eKLR (Court of Appeal) and Miguna Miguna v Standard Group Ltd & 4 Others [2017] eKLR (High Court) . By contrast, slander — being defamation in transient form — is generally not actionable without proof of special damage, unless it falls within recognized exceptions, such as imputations of criminal conduct, professional incompetence, or unchastity. The rationale for this distinction lies in the presumed permanence and wider reach of libel, as opposed to the typically fleeting nature of slander. This presumption of injury in libel reflects the law’s recognition that reputational harm may be real yet difficult to quantify, and must be balanced, at the remedial stage, against the constitutional imperative under Article 33 to avoid disproportionate restriction of freedom of expression.
(iv) Fourthly, falsity and the burden of proof. To succeed in a defamation claim, the plaintiff must demonstrate that the defamatory statement was false, or at least not shown to be substantially true, since truth constitutes a complete defence to defamation and the law does not protect reputation founded on falsehood. While the claimant bears the overall burden of proving defamation, once the defendant pleads justification, the burden shifts to the defendant to prove the truth of the defamatory imputations. Truth is a complete defence, but it must be strictly proved. Phineas Nyagah v Gitobu Imanyara [2013] eKLR , this Court held that defamatory allegations must be justified by cogent evidence, failing which liability attaches. Kenyan courts have consistently held that allegations of criminal, corrupt, or immoral conduct demand a high standard of proof; and that suspicion, opinion, rumor, or unverified belief does not suffice. See George Mukuru Muchai v Standard Limited [2001] eKLR.
(v) Finally, fault and malice. The law further requires proof of fault on the part of the defendant, in the sense that the defamatory statement must have been published with knowledge of its falsity, with reckless disregard for the truth, or without the exercise of reasonable care to verify its accuracy, depending on the circumstances of the publication and the availability of any recognized defences such as qualified privilege or fair comment. Malice, while not an essential element of the tort of defamation, assumes legal significance where it may be inferred from the circumstances of publication and operates either to defeat defences such as qualified privilege or fair comment or in the assessment of damages. Malice may be inferred from the circumstances of publication, including recklessness, failure to verify facts, knowledge of falsity, persistence in publication, or refusal to retract or apologise. In John Ward v Standard Ltd [2006] eKLR , the High Court held that malice may be inferred where a defendant acts with indifference to the truth or publishes defamatory matter without reasonable inquiry. Where malice is established, it defeats qualified privilege and operates as an aggravating factor in the award of damages.
35. The Appellant admitted to publishing and posting the defamatory statements on two WhatsApp groups to wit; BK SUPERSTAR and FULAMO FAMILY , where both parties were members and membership thereof included other clan members totaling to about 300 persons. Publication was therefore proved.
36. As to whether the words complained off were defamatory and referred to the respondent? The appellant urged the court to find that the phrase “ fake nurse with a fake degree ” was not, in itself, sufficient to establish liability unless the Respondent demonstrated by evidence that the words referred to him, were false and that they lowered his character in the estimation of rightthinking members of society. Further, the said words “ fake nurse with a fake degree ” was general in nature and could have applied to any nurse within the WhatsApp forums and that no member of the forums testified to having understood the words as directed at the Respondent. Therefore, identification was inferred rather than proved.
37. On the other hand, the Respondent’s submitted that the words complained off were grave allegations that directly attacked his professional integrity. He argued that in a regulated profession such as nursing, imputations of falsified qualifications are inherently defamatory and that the said words had caused him embarrassment, humiliation, and economic loss, as patients avoided his clinic and colleagues questioned his credibility. He pointed to his nursing registration number 19754 and clinic registration number 126893 and corroboration was established by PW2 regarding his professional standing. He thus urged the Court to find that the words complained of, were understood by members of the WhatsApp forums as referring to him and injured his reputation.
38. In Musikari Kombo v Royal Media Services Limited [2018] eKLR the Court of Appeal stated that:
“ The test for whether a statement is defamatory is an objective one . It is not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. In Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 the authors opined: “ In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense. ”
39. The proper inquiry is whether ordinary, reasonable members of society, considering the w
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IN THE HIGH COURT OF KENYA AT MARSABIT
APPALLATE DIVISION
CIVIL APPEAL NO. E011 OF 2025
SURAW MOHAMMED ISSACK……………………………………..APPELLANT
VERSUS
ABDIWAHAB NURA ISSACK……………………………………..RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT/DECREE OF HON W.K CHERUIYOT PRINCIPAL MAGISTRATE DELIVERED ON 15 th OCTOBER 2025 IN MOYALE PMCC CASE NO. E007 OF 2024)
BETWEEN
ABDIWAHAB NURA ISSACK…………………………………….…. PLAINTIFF
VERSUS
SURAW MOHAMED ISSACK………………………………………DEFENDANT
JUDGEMENT
A. INTRODUCTION
1. This appeal is filed challenging the Judgement/decree of Honourable W.K Cheruiyot (PM) dated 15 th October 2025, issued in Moyale PMCC No E007 of 2024 , where he entered judgement in favour of the respondent to the tune of Kshs.2,000,000/= as general damages for injury to his reputation and further issued orders of Mandatory injunction restraining the appellant from further disseminating or causing to be disseminated any defamatory material of or concerning the respondent, who was also awarded the costs of the suit.
2. The background hereto was that vide his plaint dated 13 th September 2024, the respondent sued the Appellant seeking inter alia an order of permanent injunction restraining the appellant from further disseminating or causing to be disseminated any defamatory material of or concerning him or at all, general damages, interest thereon, costs of the suit and any other relief the court deems fit to grant.
3. The respondent averred that he was a registered nurse and Senior Nursing Officer stationed at Takaba Referral Hospital in Mandera County. On or about 11 th August 2024, while participating in a WhatsApp forum known as BK SUPERSTAR comprising approximately 221 members, he posted a video message on the subject of maturity. In response thereto, the Appellant immediately responded to his post by texting, without provocation or just cause, malicious and defamatory statements or words: “Khalbi Curur (shallow minded), fake nurse with fake degree, your capacity of understanding is very low. Umejifungulia mlango usilie na konde and will reply you very soon and be mos mos.” It was further pleaded that the Appellant forwarded the same words in another social forum styled Fulamo Family Forum , thereby aggravating the injury caused to the Respondent’s reputation.
4. The two WhatsApp forums composed of persons, who were mainly from Tabaka sub county within Mandera county, where he lived and worked, and following the said posting, people within the aforementioned group, others not in the said WhatsApp group called him and others inquired verbally with the intention to verify the said allegations, and whether indeed if it was true that he had a fake degree. The appellant’s post and conduct were clearly unwarranted and it could be safely presumed that he intended to malign and cause him public embarrassment, loss of reputation, mental anguish, loss of self-confidence and without doubt harmed his reputation and character.
5. Despite demand and notice of intention to sue, the appellant had failed to retract his statement and/or refused to issue an apology and the respondent, thus prayed that the orders sought be granted.
B. THE RESPONSE
6. The appellant, upon being served, did file his Statement of Defence dated 11 th February 2025, where he denied in toto all the averments made by the respondent in his plaint and put him to strict proof thereof. Further, he particularly, denied publishing any statement concerning the respondent on any public forum and in the alternative stated that if any such publication was made, (which was still denied), then the same did not target the respondent nor maligned him in any manner. The particulars of damages as itemized in the plaint too was vehemently denied and the respondent was put to strict proof thereof.
C. FACTS AT TRIAL
7. PW1, Abdiwahab Nura Issack, the Respondent herein, adopted his witness statement, and the list of documents relied too, was produced as exhibits. He rehashed the matters pleaded and maintained that the words published were calculated to disparage his professional standing as a registered nurse and caused him to suffer embarrassment, loss of clients at his clinic, and psychological distress.
8. On crossexamination, the respondent maitained that he was a respected member of the community, a family man, and proprietor of Mutaz Medical Clinic. Previously in 2017 and 2019, the appellant had defamed him, but they had resolved the matter before community elders and the appellant had apologized and vowed not to repeat the same. He reiterated that the defamatory words had led him to suffer loss of clients, inability to pay staff, and social stigma, though he conceded that he had not filed financial statements to prove financial loss. He further maintained that the defamatory publication, were widely circulated in different forums and understood by friends, colleagues and clients to refer to him personally and thus had suffered loss and damage for which he should be compensated.
9. In re-examination, the respondent affirmed his evidence in chief and emphasized that he was a respected member of the community and was commonly referred to as Daktari, and that it was clear that the appellant’s comments were directed towards him, since he was the only nurse in the WhatsApp group in question. Members of the said groups had also urged the appellant to apologize, and he too had served the appellant with a demand letter, but the appellant had refused to withdraw his remarks and/or to apologize. He thus urged the court to award him damages for the reputational injury suffered.
10. PW2, Abdulrahim Abdow Mohamed, a nurse at Takaba SubCounty Hospital, adopted his witness statement as evidence in chief. He testified that he had known the Respondent for many years, had worked with him on parttime basis at Mutaz Medical Clinic, and attested to his good reputation prior to the incident. He stated that following the publication, the Respondent’s reputation was injured, clients attended to at the clinic had reduced, and that the Respondent suffered distress. On crossexamination, PW2 admitted that he was not a member of the WhatsApp groups in question and had only been shown the posts by the respondent and other common friends. He maintained that the Respondent was a registered nurse of good standing and that the publication had caused him to suffer loss of reputation and clients since his qualification was put in doubt. He was also not aware of any other factors that lead to loss of clients to his clinic facility.
11. The Appellant, DW1 Nur Mohamed Issack, adopted his witness statement and testified that he was a police officer residing in Banisa SubCounty, Mandera County, but was stationed in Meru County. He confirmed that the respondent was his cousin, but did not know of his trade and/or profession since they last met over 40 years ago. On cross examination, he admitted being a member of the BK Superstar and Fulamo forum, which was their clan WhatsApp group, his phone number was 0725113277, but added that he had been removed temporarily from the said forums. In relation to the impugned post, he confirmed that he responded to the shared clip titled, “Maturity”, but denied that the impugned words (his response) were directed at the Respondent.
12. He emphasized that the group had several nurses and explained the phrase “ Galbi arur ” was a Somali expression meaning “ immature child ” and reiterated that the words, “fake nurse” too was not directed at the respondent, since he did not know the person who had sent the said clip, and/or his profession. He further clarified that he did not know where the respondent worked and had never had any issue with him before, not even before the clan elders as alleged. Finally, he confirmed that upon being served with the demand letter, he had shared the same on the WhatsApp group to inquire on who was suing him.
13. Under reexamination, the appellant admitted that he was the one who posted the “impugned publication”, in response to the clip talking about maturity and how people behave, since the same was an indirect abuse. He reiterated that he had no quarrel with the Respondent, and maintained that they had not disagreed before.
D. TRIAL COURT JUDGEMENT
14. The learned trial magistrate, having considered the pleadings, oral testimony, documentary evidence, and submissions of counsels, addressed the central issue of whether the words complained of were defamatory. The court noted that the Appellant admitted posting the impugned words in the WhatsApp forum where both parties were members, though he claimed they were general and not directed at the Respondent. The magistrate held that the words “fake nurse with a fake degree” in their ordinary meaning suggested that the Respondent was unqualified, falsely held himself out as a nurse, and had acquired his credentials in a questionable manner. Such words, unless justified, were capable of lowering the Respondent in the estimation of rightthinking members of society, exposing him to ridicule, contempt, and being shunned by the public.
15. On the question of reference, the trial court held that the Appellant had tagged the Respondent’s post and responded directly to it, thereby making it clear that the words were of and concerning the Respondent. The learned magistrate rejected the Appellant’s contention that the words were general, noting that he was unable to name any other nurses in the WhatsApp group. The court further observed that other members of the forum had urged the Appellant to withdraw the offending statement, confirming that the words were understood to refer to the Respondent.
16. On publication, the Appellant had admitted to making the offending post, and the court had found that the words were indeed published in both the BK Superstar and Fulamo Family Forum groups . On falsity, the court held that the Respondent had testified to being a registered nurse employed by the government and had produced his registration details, while the Appellant tendered no evidence to support his allegation that the Respondent was a “fake nurse with a fake degree.” The defence was therefore dismissed as unsound.
17. On quantum, the court considered the Respondent’s testimony that he suffered professional damage, loss of clients, and financial harm. Guided by precedents including Nation Media Group Ltd v Nanjira [2024] KEHC 2576, Tipper v Rosborg [2024] KEHC 14010, and Ambe v Onyango [2024] KEHC 6138 , the magistrate held that a successful plaintiff in a defamation action is entitled to general compensatory damages to vindicate his reputation and compensate for distress, hurt, and humiliation. The court awarded the Respondent general damages of Kshs.2,000,000/= for injury to his reputation, issued a permanent injunction restraining the Appellant from further disseminating defamatory material concerning the Respondent, and awarded costs of the suit.
E. THE APPEAL
18. Being aggrieved by the said judgement/ decree, the appellant filed his memorandum of appeal and raised the following grounds of appeal namely that;
a) The learned trial magistrate erred in fact and in law by finding that there was publication of the alleged defamatory statement to third parties when there was no proof of publication beyond the Respondent himself.
b) The learned trial magistrate erred in fact and in law by finding that the alleged defamatory statement was false when no documentary or other evidence was produced by the Respondent to that effect.
c) The learned trial magistrate erred in fact and in law by finding that the alleged defamatory statement referred to the Respondent.
d) The learned trial magistrate erred in law and in fact by misapplying the law on defamation generally and in awarding the reliefs granted in the impugned judgment.
19. The Appellant therefore prayed that this Honourable Court be pleased to set aside the impugned judgment and to dismiss the primary suit with costs
F. PARTIES SUBMISSIONS
i) Appellant’s Submissions
20. The Appellant, relied on his submission dated 3 rd March 2026, where he urged this court to find that the learned trial magistrate had erred in both law and fact to hold that he was liable for defaming the respondent, when it was not demonstrated that he was the only nurse in the said forum, nor was there any proof that the words published were understood to exclusively refer to the Respondent. In short, identification was inferred rather than proved, contrary to the principle that defamation, required clear evidence that the words complained off were understood to refer to the claimant. Reliance was placed on Matumbi Vs Tanui (Civil Appeal No 67 of 2020), (2026) KECA 253 (klr) & MWY v ZWN [2015] eKLR, where the High Court held that identifiability must be established by evidence.
21. On falsity, the Appellant submitted that the Respondent had failed to discharge the burden of proof. It was argued that the trial court erroneously presumed falsity once it found the words were defamatory, thereby reversing the burden of proof. Counsel emphasized that documentary proof of professional qualifications was essential, yet the Respondent relied solely on oral testimony without producing certificates or registration documents from the Nursing Council. Reference was made to case of Matumbi (Supra) which reaffirmed that falsity is a substantive element of defamation and must be strictly proved.
22. On whether the respondent’s reputation had been lowered before right thinking members of the society, the appellant emphasized that the publication and its defamatory effects must be proved as facts and further noted that defamation protected reputation and not feelings, annoyance or professional rivalry. While the respondent had alleged that the publication had resulted in less clients coming to his clinic, he had admitted in cross examination that he had not produced financial statements, attendance records or tax returns to prove the same. In absence of objective evidence of reputational damage, the finding that his standing had been lowered before his peers could not be sustained.
23. On whether malice was proved, the appellant averred that malice could not be presumed from publication alone and had to be proved by direct evidence or inferred from conduct demonstrating know edge of falsity or reckless disregard for truth. In the present case, he had explained the context in which the words were posted and denied targeting the respondent. There was also no evidence to demonstrate that the appellant knew the statement made to be false nor had he acted with reckless disregard for truth. Thus the trial Magistrates finding of malice was speculative and unsupported by evidentiary foundation. Reliance was placed in Nation Media Group Ltd Vs Alfred .N. Mutua (2017) eKLR for emphasis .
24. On damages, the Appellant submitted that the award of Kshs . 2,000,000/= was excessive and disproportionate given the limited scope of publication within WhatsApp groups as opposed to national broadcast. Counsel relied on Matumbi (Supra) , where the Court of Appeal underscored that damages must reflect cogent evidence of reputational injury and proportionality. It was argued that the Respondent had not produced evidence of quantifiable loss, and therefore the award was speculative. The Appellant urged the court to allow the appeal, set aside the judgment, and to dismiss the primary suit with costs, or in the alternative, substantially reduce the damages awarded.
ii) Respondent’s Submissions
25. The Respondent, on his part, relied on his submissions dated 7 th May 2026, wherein he urged this court to uphold the trial court’s findings and to dismissal of this appeal. On publication, it was submitted that the Appellant admitted to posting the impugned words in two WhatsApp forums — BK Superstar with 221 members and Fulamo Family Forum with 80 members thereby reaching nearly 300 persons. This satisfied the legal element of publication, as the words were disseminated to third parties beyond the Respondent.
26. On falsity, the Respondent submitted that he testified to being a registered nurse employed by the government and gave his registration number. PW2 corroborated this fact, which was adequate proof that he was indeed a qualified nurse, thereby shifted the evidentiary burden on the Appellant to prove his allegation that he was a “ fake nurse with a fake degree. ” The trial court was therefore correct in finding that the allegation made was false.
27. On reference, the Respondent submitted that the words were clearly directed at him, as they were posted in response to his video on maturity and tagged to his post. He further noted that the Appellant was unable to name any other nurse in the groups, confirming that the words referred to him and besmirched his reputation before his peers and family. The trial court’s inference was therefore proper.
28. Finally on damages, the Respondent submitted that the award of Kshs.2,000,000/= was justified, guided by precedents such as Nation Media Group Ltd v Naniira (Civil Appeal E030 of 2021) [2021] KEHC 2576 (KLR) and John v MGN Ltd (1997) , which affirmed that compensatory damages in defamation must vindicate reputation and account for distress and humiliation. Counsel argued that the defamatory statements had an adverse effect on the Respondent’s clinic, leading to loss of clients and diminished professional standing. It was further submitted that this was not the first time the Appellant had defamed the Respondent, making the award appropriate.
29. The Respondent therefore urged the court to dismiss this appeal with costs, terming it frivolous and vexatious.
G. ANALYSIS AND DETRMINATION
30. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123.
31. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of Section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316.
32. The issues that arise in this Appeal are whether the trial court correctly appreciated the facts and the law to arrive at its decision that the Appellant had published the impugned words to third parties; whether the court erred in finding that the words referred to the Respondent when no independent witness from the WhatsApp forums testified to that effect; whether the trial court misdirected itself by presuming falsity of the words without requiring strict documentary proof of the Respondent’s professional qualifications; whether the court misapplied the principles of defamation in dismissing the Appellant’s defence of freedom of expression and in awarding general damages of Kshs.2,000,000/= and finally issuing a permanent injunction in circumstances where the scope of publication was limited.
33. The Appellant admitted to posting the impugned words in the WhatsApp forums where both parties were members. The central question is whether the trial court correctly appreciated the facts and the law in finding that those words amounted to actionable defamation.
34. In Matumbi v Tanui (Civil Appeal 67 of 2020) [2026] KECA 253 (KLR) (13 February 2026) (Judgment) Neutral citation: [2026] KECA 253 (KLR) the court of appeal succulently summarized defamation jurisprudence as follows;
In Kenya, the tort of defamation is now well settled, both as a matter of common law and as informed by the Constitution. In an action for defamation, a claimant must establish that the defendant published to a third party a statement of fact which referred to the claimant, was defamatory in nature in that it tended to lower the claimant’s reputation in the estimation of right-thinking members of society, was false, and was published with the requisite degree of fault . Once liability is established, the court must assess damages with due regard to the nature and gravity of the defamation, the reach and mode of publication, the conduct of the defendant before and after publication, and the need to vindicate reputation while, at the same time, respecting the constitutional guarantee of freedom of expression under Article 33 of the Constitution
Flowing from this formulation, a plaintiff in a defamation action must establish the following five elements.
(i) First, defamatory meaning. A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society generally, causes the claimant to be shunned or avoided, or exposes the claimant to hatred, contempt, or ridicule. This formulation, drawn from Gatley on Libel and Slander , has been repeatedly cited with approval by various courts. For example, in Musikari Kombo v Royal Media Services Ltd [2018] eKLR, this reaffirmed that the test is an objective one, to be applied from the standpoint of ordinary, reasonable members of society, and not from the subjective sensitivities of the claimant. Kenyan courts have further emphasized that the impugned words must be assessed as a whole, in their full context, and according to their natural and ordinary meaning as understood by reasonable readers or listeners, rather than through strained or technical interpretation. See also Miguna Miguna v Standard Group Ltd & 4 Others [2017] eKLR (HC) .
(ii) Secondly, reference to the plaintiff. The claimant need not be expressly named in the publication. It suffices if reasonable persons acquainted with the claimant would understand the words complained of to refer to him or her. The governing consideration is identifiability, not universality of recognition. In SMW v ZWM [2015] eKLR , the High Court held that defamation is established where those who know the plaintiff can, on a reasonable reading of the publication, identify him or her as the person referred to. What matters is that the publication points, directly or by implication, to the claimant.
(iii) Thirdly, publication to a third party. To succeed in a defamation claim, the plaintiff must demonstrate that the defamatory words were published, in the sense that they were communicated to at least one person other than the plaintiff, since defamation is concerned with injury to reputation in the eyes of others and not with private insult or affront. In Nation Media Group Ltd v Alfred Mutua [2017] eKLR , this Court underscored that publication through mass media substantially aggravates defamation because of its reach, repetition, and permanence, particularly in the digital age. Kenyan courts have also recognized that each publication, including online republication, may constitute a distinct cause of action, subject to limitation principles. Closely related to publication is the question of actionability and proof of injury, and here Kenyan law retains the classical common-law distinction between libel and slander Libel, being defamation in permanent form — whether written, printed, broadcast, or digitally published — is actionable per se. In cases of libel, once the plaintiff establishes the other elements of defamation, injury to reputation is presumed, and the plaintiff is not required to prove actual damage in order to be entitled to general damages. This position has been affirmed in Kenyan jurisprudence, including in Selina Patani &Another v Dhiranji V . Patani[2019] eKLR (Court of Appeal) and Miguna Miguna v Standard Group Ltd & 4 Others [2017] eKLR (High Court) . By contrast, slander — being defamation in transient form — is generally not actionable without proof of special damage, unless it falls within recognized exceptions, such as imputations of criminal conduct, professional incompetence, or unchastity. The rationale for this distinction lies in the presumed permanence and wider reach of libel, as opposed to the typically fleeting nature of slander. This presumption of injury in libel reflects the law’s recognition that reputational harm may be real yet difficult to quantify, and must be balanced, at the remedial stage, against the constitutional imperative under Article 33 to avoid disproportionate restriction of freedom of expression.
(iv) Fourthly, falsity and the burden of proof. To succeed in a defamation claim, the plaintiff must demonstrate that the defamatory statement was false, or at least not shown to be substantially true, since truth constitutes a complete defence to defamation and the law does not protect reputation founded on falsehood. While the claimant bears the overall burden of proving defamation, once the defendant pleads justification, the burden shifts to the defendant to prove the truth of the defamatory imputations. Truth is a complete defence, but it must be strictly proved. Phineas Nyagah v Gitobu Imanyara [2013] eKLR , this Court held that defamatory allegations must be justified by cogent evidence, failing which liability attaches. Kenyan courts have consistently held that allegations of criminal, corrupt, or immoral conduct demand a high standard of proof; and that suspicion, opinion, rumor, or unverified belief does not suffice. See George Mukuru Muchai v Standard Limited [2001] eKLR.
(v) Finally, fault and malice. The law further requires proof of fault on the part of the defendant, in the sense that the defamatory statement must have been published with knowledge of its falsity, with reckless disregard for the truth, or without the exercise of reasonable care to verify its accuracy, depending on the circumstances of the publication and the availability of any recognized defences such as qualified privilege or fair comment. Malice, while not an essential element of the tort of defamation, assumes legal significance where it may be inferred from the circumstances of publication and operates either to defeat defences such as qualified privilege or fair comment or in the assessment of damages. Malice may be inferred from the circumstances of publication, including recklessness, failure to verify facts, knowledge of falsity, persistence in publication, or refusal to retract or apologise. In John Ward v Standard Ltd [2006] eKLR , the High Court held that malice may be inferred where a defendant acts with indifference to the truth or publishes defamatory matter without reasonable inquiry. Where malice is established, it defeats qualified privilege and operates as an aggravating factor in the award of damages.
35. The Appellant admitted to publishing and posting the defamatory statements on two WhatsApp groups to wit; BK SUPERSTAR and FULAMO FAMILY , where both parties were members and membership thereof included other clan members totaling to about 300 persons. Publication was therefore proved.
36. As to whether the words complained off were defamatory and referred to the respondent? The appellant urged the court to find that the phrase “ fake nurse with a fake degree ” was not, in itself, sufficient to establish liability unless the Respondent demonstrated by evidence that the words referred to him, were false and that they lowered his character in the estimation of rightthinking members of society. Further, the said words “ fake nurse with a fake degree ” was general in nature and could have applied to any nurse within the WhatsApp forums and that no member of the forums testified to having understood the words as directed at the Respondent. Therefore, identification was inferred rather than proved.
37. On the other hand, the Respondent’s submitted that the words complained off were grave allegations that directly attacked his professional integrity. He argued that in a regulated profession such as nursing, imputations of falsified qualifications are inherently defamatory and that the said words had caused him embarrassment, humiliation, and economic loss, as patients avoided his clinic and colleagues questioned his credibility. He pointed to his nursing registration number 19754 and clinic registration number 126893 and corroboration was established by PW2 regarding his professional standing. He thus urged the Court to find that the words complained of, were understood by members of the WhatsApp forums as referring to him and injured his reputation.
38. In Musikari Kombo v Royal Media Services Limited [2018] eKLR the Court of Appeal stated that:
“ The test for whether a statement is defamatory is an objective one . It is not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. In Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 the authors opined: “ In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense. ”
39. The proper inquiry is whether ordinary, reasonable members of society, considering the w
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