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JudgmentSusan Wuganga Siboe VS Jane Mkangemi Mwandawa5 min read

Susan Wuganga Siboe VS Jane Mkangemi Mwandawa

High Court at Voi High Court · · George. Dulu


(From the judgment in Civil Case No. E145 of 2022 delivered on 10th July 2023 by Hon. A. M. Obura (Mrs.) (CM) at Voi Law Courts)

  1. In a judgment delivered on 10th July 2023 the trial Magistrate dismissed the defamation claim (case) of the plaintiff (now appellant), and ordered that parties bear their respective costs, as it was a family matter.
  2. Dissatisfied with the decision of the trial court, the appellant has come to this court on appeal through counsel Mutinda & Wambura Nthiga Advocates on the following grounds:-
  3. The trial Magistrate erred both in law and fact in finding that the appellant had not proved her case against the weight of the evidence.
  4. The Magistrate erred in law and fact in failing to take into account the respondent’s admission of alleged defamation.
  5. The Magistrate erred in law and fact in finding that the respondent’s defence was merited yet none of the defences to defamation had been raised in the respondent’s defence.
  6. The Magistrate erred in law and fact in dismissing the appellant’s case against the evidence tendered in court.
  7. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by Mutinda & Wambura Nthiga Advocates for the appellant and the submissions filed by Mwazighe & Company Advocates for the respondent.
  8. This being a first appeal, I have to bear in mind that I have a duty to reconsider the evidence on record, and come to my own independent conclusions – see Section 78 of the Civil Procedure Act (Cap.21), and the case of Selle =Versus= Associated Motor Boat Company Ltd (1968) EA 132, and Peter M. Muriuki =Versus= Attorney General (2014) eKLR.

  1. The burden was on the appellant, who was plaintiff, to prove her allegations against the respondent as required under Section 107 of the Evidence Act (Cap.80).  As this is a civil case, the standard of proof was on the balance of probabilities.
  2. At the trial, the appellant called five (5) witnesses.  On her part, the respondent called three (3) defence witnesses.
  3. PW1 was the appellant, a retired accountant whose evidence was that the respondent was her niece.  It was her evidence that the respondent uttered in public words to the effect that appellant took her father to Nairobi, killed him and came back to take his land.  She stated that those words meant that she killed her own brother and was a land grabber.  It was her further evidence that the respondent had stated so in public many times.  That as a result her name had been tarnished and asked for judgment in her favour.
  4. In cross examination, she agreed that the incident occurred when there was commotion at a land site in broad daylight, and that there were strained relations in which some of her relatives do not talk to her.
  5. PW2 was Zaina Mwandawa a sister in law of the appellant.  She testified that Jane (the respondent) stated in public that Susan (the appellant), took her father to Nairobi and killed him, which was false. 
  6. PW3 Solomon Mwandawa, PW4 Gideon Maghanga and PW5 Musa Juma also testified that they heard Jane utter the words in public.
  7. On her part, the respondent Jane Mwangemi testified as DW1, that the appellant, her aunt, provoked her by calling her a witch.  It was her testimony that the appellant was fond of calling her a witch.  In cross-examination, she admitted that she said in public that the appellant killed her father. 
  8. DW2 Samuel Mwandawa testified that Susan called Jane a witch and that there was a bitter argument between the two.
  9. DW3 Getrude Wawuda testified that Susan called Jane a witch, and that Jane replied that Susan had secretly taken the father to Nairobi for treatment.
  10. At the close of the evidence both for the appellant and respondent, parties counsel filed written submissions.
  11. In determining the case, the trial Magistrate considered the definition of defamation in Gately on Libel and Slander to the effect that:-

“The gist of the facts of libel and slander is the publication of matter (usually words) conveying defamatory reputation.  A defamatory imputation is due to a man’s discredit, which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit.  The standard of opinion is that of right thinking persons generally.  To be defamatory an imputation need have no actual effect on a person’s reputation, the law looks only to its tendency.  A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory.”

  1. From the evidence on record on both sides, in my view, no defamation was proved by the appellant.
  2. First of all, though the allegation is that the words of the respondent, that the appellant killed her father and came to grab the land were uttered in public, the evidence on record is that the words were uttered in a family disagreement and arguments setting, even if it was the extended family.  Thus even if the words were untrue or derogatory, they could not demean the reputation of the appellant to the general public.  The family members were not the public.
  3. Secondly, from the evidence on record, what happened was an altercation on both sides, with each party throwing words that might be untrue and rude to the other, or words which could not be proved as against the other.  The appellant called the respondent a witch.  The respondent called the appellant a killer and land grabber.  Thus the appellant demeaned herself by uttering words that the respondent was a witch.  Once she did so; in my view, she could not claim that she had a reputation to loose, as she had lowered her own reputation by calling the respondent unpleasant names.  The respondent could also not claim to have been demeaned by being called a witch, as she participated in the name calling.  None of them could claim lowering of reputation.
  4. In my view, appellant lost her reputation, once she participated in the name calling.  She cannot be an active participant in name calling and then make a claim for defamation or slander from the other participant in the rude remarks.
  5. I thus find no merits in the appeal.  I dismiss the appeal, but as this is a family incident, I order that parties to bear their respective costs of the appeal.

Dated, signed and delivered this 8th day of May 2024 in open court at Voi virtually.

In the presence of:-

Alfred/Trizah – Court Assistants

Ms. Wambura for appellant

Mr. Mwazighe for respondent

    Susan Wuganga Siboe VS Jane Mkangemi Mwandawa Susan Wuganga Siboe VS Jane Mkangemi Mwandawa