' This is an appeal from the decision of Hon. L.L. Gicheha (CM) given on 30.04.2020. This is an appeal in respect of one of the four cases, that is, 4457 of 2013. This was part of consolidated cases numbers 3524 of 2013, 3318 of 2013, 4457 of 2013, and 4473 of 2013. The memorandum of appeal is dated 27.05.2020. The memorandum of appeal is in relation to one of the four cases where the Respondent sued the Appellants herein. The other three consolidated cases are of no concern to the matter, though the parties made a huge reliance on some of the decided cases in the series. Those cases were appeals on quantum by the Respondent and the question of the publication by the 4 Appellants was not touched.
Zubeida Koome and Noah Otieno were the second and third Respondents in 4457 of 2013. The memorandum of appeal set forth the following grounds: That the learned magistrate erred in law and in fact in misdirecting herself by holding the appellants liable.
That the learned magistrate erred in law and in fact in failing to fully analyse the defence evidence.
That the learned magistrate erred in law and in fact in awarding excessive damages of Ksh. 1,500,000/=, aggravated damages of Ksh. 1,000,000/= and exemplary damages.
That the learned magistrate erred in law and in fact in issuing separate awards contrary to section 17(3) of the Defamation Act.
In short, the appellants contended that the learned magistrate misdirecting herself in holding the appellants liable. It is further argued that the trial court failed to fully analyse the defence evidence presented resulting in holding them liability. This they stated that the court erred in issuance of separate awards, which is said to be contrary to section 17(3) of the Defamation Act. Lastly, they challenged the award of excessive damages.
The sole Respondent filed four suits against three media houses, with the 1st Appellant herein sued twice, that is Kenya Television Network (KTN) and Standard Newspaper. The appeal herein relates to the KTN case, with its employees, Zubeida Koome and Noah Otieno. The appeal by the same Appellant in respect of the newspaper aspect is not part of this appeal. Further, Luke Anami’s case is not included in the appeal. This constitutes one of the most unclean and improper approaches to litigation, splitting a defendant’s cause of action into two separate cases and getting two different judgments.
Pleadings
The Respondent filed a lengthy plaint dated 22.07.2013. The Respondent filed suit against the appellants herein. They are alleged to have published words in Kiswahili translated as follows:
According to the report of the efficiency monitoring unit and report of the inspectorate of state corporations the finance manager…while the legal officer William Keitany allocated himself 21 houses, the largest quantity compared to others, a situation that forced the housing minister Soita Shitanda to sack them.
The Respondent averred that the reporting showed that: Two officers of NHC were involved in irregular allocation of houses.
The Respondent was a man of questionable character.
The Respondent breached fiduciary duty.
The Plaintiff had abused his public office.
The news was also said to have been relayed in the 9 pm prime time news in English language. The 3rd and the 2 nd Defendant authored and the 1 st Defendant published an article in its online newspaper ‘Standard Digital News’ with the headline banner: NATIONAL HOUSING MD FIRED
Appellant is said to have said the following words as follows:
The recent scandal by the efficiency monitoring unit and inspector of state corporations has consumed the national housing managing director, director James Ruitha and NHC Board Chairman Bosire Ogero:
It was indicated that the housing minister, Soita Sitanda, had indicated that the managing director had 4 houses, and the legal officer had 21 houses. The minister concluded that they were awaiting for the final report from the Ethics and Anticorruption Commission. The Respondent concluded that the words in the rolling banner meant that the Respondent was identified. It was their case that the report indicated him to be a man of questionable moral fiber. He stated further, that the Respondents were abusing office. The report also indicated that the Respondents were to be taken to court.
It was the respondent’s case that the words for the 7 pm news, was said to be false and malicious. The rest were not said to be so. The Respondent thus sought general damages, exemplary damages, aggravated damages and costs and interest of the suit.
The Appellants filed defence and stated that the minister for housing held a press conference and sacked three managers for allocating themselves more than one unit of houses at National Housing Corporation. They stated that they were entitled to comment on it since it is a matter of public interest. They stated that the publication was a matter of public interest and a fair comment.
The Appellants denied that the plaintiff was brought to disrepute, public scandal, and reputation was injured as a lawyer. They denied that they occasioned aggravated injury to his dignity, self-confidence and reputation.
Evidence
PW1, was William Kimutai Keitany, the Respondent. He relied on his witness statement and documents filed. He testified that he was the Plaintiff in all the consolidated suits. In so far as is relevant, he testified that he was the plaintiff in the 4 cases numbers 3524 of 2013, 3318 of 2013, 4457 of 2013, and 4473 of 2013. He stated that Mr. Shitanda was then a minister for housing. He stated that the Respondents maliciously and falsely published an article in the Standard. He stated that out of these allegations, investigations were initiated by EACC, which landed him in court. He was suspended and taken through a criminal trial. He was the acting Company Secretary around the time the investigations were made.
He stated that the defendants retracted the statements after the notice was issued. He adopted his witness statement. He denied getting 21 houses. He denied the publication was a fair comment. He stated that there was a publication Sakata ya Nyumba , which alleged that he had allocated himself 21 houses. He was not dismissed from employment. He denied being allocated 21 houses.
It was his case that the allegations by the Appellants were not true. Further, he testified that the 1 st Appellant apologized on 26.7.2012. The Defendants did not talk to him to verify the allegations.
It was his stated case that as a result of the publication, he was subsequently arrested and charged with abuse of office and acquiring wealth through fraud. He was suspended and taken through the criminal process. The court found that he had no case to answer in 2015 and he was back to the job in 2016.
In cross examination, it was his case that the Minister of Housing convened a press conference and the media houses attended the conference. He did not sue the minister. He was being paid half salary on suspension until he was acquitted in 2016. He was appointed acting corporation secretary in 2017.
It was his further case on cross examination that he was also charged with conflict of interest. That the Board of NHC would deal with the minister’s recommendations. Further, that the minister gave erroneous information and the Appellants published defamatory statements. The minister did not mention his name. He was the only legal officer with the name Keitany. There were 3 legal officers: Kennedy Nyariki and Kennedy Mundia. Elizabeth Mugo was the Company Secretary. He also testified that his fellow colleagues had shunned him. Members of his family had also shunned him.
He testified that the appellants did not verify his side of the story. Two videos were handed over to court, one which showed the minister of housing addressing three media about the ‘company.’ video 2 was showing that NHC managers were axed. The defendant video showed the managing director and 5 legal officers.
On cross examination he stated that he was admitted to the roll of advocates in 1996. He stated that he was charged of offence in 2013. He stated that the issue of houses allocated were brought out by the minister. He was charged in 2013 and acquitted in 2016. He stated that he was then a Company Secretary though he was not interviewed. He stated that EACC investigations were carried out in 2012. He stated that he was suspended from October 2013.
On cross examination by the advocates for the 1 st Respondent, he stated that the information on 21 houses was from the minister for housing. The minister called a meeting and said that the Respondent had been relieved of duties which was a lie. The reports did not affect his work. He stated he was compensated upon being acquitted.
On cross examination by advocates for KBC he stated that he was charged in 2013. He stated that the contents of the four media houses were more or less similar. He said there were other legal officers. The English audio indicated that the managing director was sacked and legal officer suspended. The clips did not say that he was sacked. He stated that when a policy is introduced, it takes time to be implemented. He received a letter suspending him from the managing director.
On reexamination, he posited that the charge had no relationship with the media reports. He stated that he was not correct to say he was the legal officer referred to in the publication.
DW1 was Luke Anami now working at the Federation of Kenyan Employers. He stated he published everything the minister said on the next day. He did not mention the Respondent. The minister referred the legal officer as William Keitany. They corrected the number of houses on the online version. The announcement from the minister mentioned Willian Keitany and no one in the newsroom knew who he was. The minister also indicated on a normal allocation to his own wife, though not covered in the report.
DW1 was then a reporter at the 1st Appellant. He testified that the publication was removed the same day it was published. This was after he talked to the Respondent. They published an apology. The report was on the website of NHC. On cross examination, it was his case that the apology was to the effect that the Respondent was not sacked. The information was in the public interest and the source was the minister for housing.
He stated that this was a matter that does not touch on Keitany. It was his evidence that since the matter touched on corruption it was in public interest. He stated it was not up to him to decide whether the minister was saying the truth or not.
DW2 was Nicholas Omondi who was the news reader on the material day. He recalled it was a matter of national importance. He stated that he could feel pained if the words were not true. The next witnesses relate to the KBC case, that is DW3 and DW4. There is no need to deal with the same in this appeal.
DW3 was Martin King’asia. He worked with KBC. The news was given by a reporter who attended the press conference. On cross examination, he testified that he read the news as was given to him. They were told that the Respondent had been suspended. That his duty was to report accurately.
DW4 was Grace Matego. She introduced herself as news presenter at KBC. She read the news as it was presented. On cross examination, she testified that she did not contribute to the content.
DW5 was Zubeida Kananu Koome, who stated to have worked for KTN since 2007. She was an editor, news reporter and reader at KTN. She was not present at the press conference. She quoted what the minister said. On cross examination, it was her case that she did not make it conclusive that the Respondent had allocated to himself 21 houses. She was a political reporter in 2012. She had not known the Respondent.
On cross examination she said that she reported what the minister said. According to her, she stated that it was not conclusive that the 21 houses were allocated. According to her, it was allegations by the minister. The minister in turn relied on the Efficiency Monitoring Unit. She stated that the minister did not mention his name. However, he was the only legal officer who was charged.
DW6 was Noah Otieno Owich. He was a reporter at Standard Group. He did not go to the press conference. He took the statement as given by the minister. He testified on cross examination that he did not mention the Respondent. He had no reason to doubt what the minister said.
DW6 continued that he worked for the 1 st Appellant. He stated that the housing minister called a press conference which was covered by Michael Karanja and Luke Anami. He stated that he was working for the Standard Group. On cross examination, he stated that he watched the entire tape of the conference. The minister indicated that a legal officer was allocated 21 houses. The names were from briefings from the minister to the reporters in the press conference. He stated that he did not agree with the Respondent that the words were false. He says if the minister said anything false, he was to blame. He had no reason to doubt the minister by virtue of office.
DW7 was Ann Wairimu. She was a sub-editor with the People’s newspaper. She attended the press conference and questions and answer session. She did not manufacture any story. She also testified that the MD made the correction. According to her, what was published was what the minister said. It was her case on cross examination that she could not tell whether what the minister said was true or not. They did not verify the facts from the Respondent.
It was her case on cross examination that she could not tell whether what the minister said was true or not. They did not verify the facts from the Respondent.
Submissions
Parties filed humongous submissions. The appellants laid down the duty of the court. They stated that the minister for housing had a press conference on 24.07.2012 where he named the Respondent as having taken 21 houses. The clips of what the minister said was admitted in evidence. He gave the information on a position of authority. Further, the minister subsequently clarified and the clarification was not contradicted. Reliance was placed in the case of Wycliffe A Swanya v Toyota East Africa Ltd & another [2009] eKLR , where the court of appeal [P. K. Tunoi, P. N. Waki, and D. K. S. Aganyanya] posited as follows:
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 defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.
(iii) That it was published maliciously
(iv) In slander, subject to certain exceptions, that the plaintiff has suffered special damage.
It was their submission that malice in defamation need not always be proved by direct evidence of ill will. It may be inferred from the circumstances of the publication itself. Where the words used are so exaggerated, disproportionate, or utterly beyond the facts as to suggest recklessness or spite, the court may find that malice is established. They relied on the decision of Phinehas Nyagah v Gitobu Imanyara [2013] KEHC 6662 (KLR) , where the court held as follows:
…Malice can be founded in the publication itself if the language used is utterly beyond the facts. The failure to inquire 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...
The Appellants relied on Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 where the learned authors opined as hereunder in deciding whether a statement is defamatory:
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.
They stated that the court failed to consider whether the publication was defamatory. It was their submissions that the publication be seen in context. Reliance was to be placed on the case of Hellen Makone versus Francis Kahos and another [2004] eKLR, where the court of appeal defined malice as:
What then is malice in law?
The most definitive consideration of malice is the statement of Lord Diplock on the case of Horrocks versus Lowe {1975} AC page 135 where at page 151 and 152 he stated:-
Judge and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed.
Regarding the question of qualified privilege they placed reliance on the case of Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR ), where the court of appeal stated as follows:
16. Moreover, the intention of the Respondent’s journalist was to report on the public interest issue pertaining to corruption. For that reason the defence of qualified privilege was available to the Respondent. Besides, the appellant being a public figure ought to expect unflattering statements made about him since it came with the territory.
It was their submissions that the actual words complained of and the substance must be proved by the plaintiff. Further, reliance was made on the case of Simeon Nyachae V Lazarus Ratemo Musa & Another [2007] KEHC 885 (KLR ) , where, M. Warsame J, as he then was, stated as follows:
In an action for defamation, the actual words complained of and the substance must be proved by the plaintiff. And it is not sufficient to show the defendant made defamatory statements. The plaintiff must give particulars of the facts and matters from which the malice is to be inferred. He must show to court that the defendant acted maliciously. In my humble view, words are not defamatory perse, there has to be a statement of fact or expression of opinion or imputation conveyed by them, which will have the effect of defaming an individual.
They submitted that Order 7 Rule (2) of the Civil Procedure Rules provides as follows:
(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.
They submitted that the aggravated damages are awarded only if the conduct increased injury to the claimant. Reliance was placed in the case of Heziekiel Oira v Standard Limited & another [2016] eKLR . The case was affirmed by the court of appeal [W Karanja, HM Okwengu & MSA Makhandia, JJA] in Oira v Standard Limited & another [2022] KECA 1361 (KLR ) , where the Court of Appeal held as hereunder:
I would not award punitive and exemplary damages as there was no evidence of the conduct of the defendants before, during and after the trial of the suit herein that the defendants republished the alleged defamatory words of and concerning the plaintiff and with a sinister motive.
They urged the court to allow the appeal.
The Respondent filed submissions which he started with a prologue as hereunder:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls: Who steals my purse steals trash;
''tis something, nothing; ''
Twas mine, ''tis his, and has been slave to thousands:
But he that filches from me my good name Robs me of that which not enriches him and makes me poor indeed.
William Shakespeare, Othello, Act 3 Scene 3, 155-161.
He submitted that the law of defamation is concerned with protection of a person’s reputation. Reliance was placed on the Court of Appeal decision in S M W v Z W M [2015] eKLR:
A statement is defamatory of the person of whom it is published if it tends to lower him/ her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.
It was his submission that the Appellants published a report in which they adversely mentioned the Respondent as having been sacked as an employee of NHC after fraudulently allocating himself 21 houses. The news item reported that:
…kwa mujibu wa Ripoti ya Kitengo cha Kusimamia Utendaji Bora na Ripoti ya Kitengo cha Ukaguzi wa Mashirika ya Serikali ni kuwa Meneja wa Fedha Manasseh Wandabwa alijitengea takriban nyumba tisa kinyume na sheria huku afisa wa Sheria William Keitany akijitengea nyumba ishirini na moja idadi kiubwa Zaidi ikilinganishwa na wengine hali ililazimu waziri wa nyumba Soita Shitanda kuwafuta kazi…
It was his additional submission that in KTN Prime news bulletin in English, the 3rd Appellant reported that:
…The Housing Minister has sacked the Parastatal’s Finance Manager Manasseh Wandabwa who allegedly got 9 houses and the legal officer william keitany…
It was submitted that these words imputed dishonesty and abuse of office, exposing the Respondent to public hatred, contempt, and ridicule. He stated that the Court of Appeal in Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR, stated as follows:
…In the 4th Edition Vol. 28 of Halsbury''s Laws of England, the following statement appears at page 23: 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. The reasonable man was explained in Winfield & Jolowiez on Tort 8th Edition at P. 255 as:
The answer is the reasonable man. This rules out on the one hand persons who are so lax or so cynical that they would think none the worse of a man whatever was imputed to him, and on the other hand those who are so censorious as to regard even trivial accusations (if they were true) as lowering another''s reputation or who are so hasty as to infer the worst meaning from any ambiguous statement. It is not these, but the ordinary citizen, whose judgment must be taken as the standard….
The Respondent submitted that the Appellants’ words implied that he was corrupt, dishonest, and engaged in fraud against NHC and, by extension, the State, especially in light of the country’s frequent corruption scandals. In respect to defamation, he relied on the case of Selina Patani & another v Dhiranji V. Patani [2019] eKLR , where the court of appeal [Karanja, Odek & Kantai, JJA] posited as follows:
We have analyzed the judgment of the High Court and are satisfied that the Judge correctly identified and considered the elements of the tort of defamation. The Judge cited Winfield and Jolowitz on Tort, 8th Edition page 254 as well as excerpts from Halsbury’s Laws of England, 4th Ed. Vol 28 paragraph 10 thereof. In rehashing, we note the ingredients of defamation were summarized in the case of John Ward -v- Standard Ltd, HCCC 1062 of 2005 as follows: -
(i) The statement must be defamatory.
(ii) The statement must refer to the plaintiff.
(iii) The statement must be published by the defendant.
(iv)The statement must be false.
The Respondent argued that the appellants argued they were merely relaying the Housing Minister’s press briefing in the public interest, insisting such statements should be treated as unquestionable truth. However, it was countered that this is not a recognized legal defence, as a Minister’s statement is not beyond challenge, and defamation law remains central to the constitutional rights of all Kenyans. Reliance was placed on the case of Gideon Mose Onchwati v Kenya Oil Co. Ltd & another [2015] [2015] KEHC 7444 (KLR ) , where R.E. Aburili, posited as follows:
On the first issue, my commencement point is that the court in deciding defamation cases must balance the provisions of Articles 33, 34 and 35 of the Constitution, dealing with freedoms of expression and media freedom and the individual’s right to access information on the one hand and Article 28 in respect of the inherent dignity of every person which dignity must be respected and protected. On the right to access information and the freedom of expression, the words of Lord Denning MR in Fraser v Evans &others (1969) All ER 6 are instructive that:
There are some things which are of such public concern that newspapers, the press and indeed everyone is entitled to make known the truth and to make their comment in it. This is an integral part of the right of speech and expression. It must not be whistled away.
They stated that the 2nd and 3rd Appellants fell short of Code of Conduct for the Practice of Journalism in Kenya. The code provides a guide on how journalists should abide by certain principles in their work. Section 1 reads:
1. Accuracy and Fairness
…(3) Comments shall be sought from anyone who is mentioned in an unfavourable context and evidence of such attempts to seek the comments shall be kept…
The code of conduct was not part of the pleadings and irrelevant for this case. They contended that the Appellants’ actions could be excused within the pretext of qualified privilege. In the case of Musikari Kombo v Royal Media Services Limited [Supra], the Court clarified on qualified privilege within the realm of public interest as follows:
…26. Was the defence of qualified privilege available to the Respondent? The essence of this defence is an attempt to balance two competing but vital interests in society; the individual’s right to have their character and reputation protected and safeguarded from false, unwarranted and malicious or scurrilous attacks on the one hand, and the public’s right to know as exercised and fed by freedom of expression, which is an indispensable feature of a free and democratic society as well as a major tool for public accountability. See Kagwiria Mutwiri Kioga & another vs. Standard Limited & 3 others [2015] eKLR. The defence is entrenched under Section 7 of the Defamation Act.
27. In Reynolds vs. Times Newspapers [1999] 4 ALL ER 609 the House of Lords went on further to set out a criteria for determining whether a publication is subject to qualified privileged as herein under:
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
The nature of the information, and the extent to which the subject matter is a matter of public concern.
The source of the information. Some informants have direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
The steps taken to verify the information.
The status of the information. The allegation may already have been the subject of an investigation which commands respect.
The urgency of the matter. News is often a perishable commodity.
Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed.
Whether the article contained the gist of the plaintiff’s side of the story.
The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
The circumstances of the publication including the timing .
He submitted that the 3 rd Appellant admitted the minister never mentioned the Respondent’s name in the recordings. Consequently, the trial Court correctly found no evidence to the contrary.
He argued that the damages and aggravated damages were proper. Reliance was placed on the case of William J Butler v Maura Kathleen Butler [1984] KECA 34 (KLR) and Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah & Company advocates [2013] KECA 252 (KLR). Further reliance was placed on the case of Keitany v Nation Media Group Limited & another (Civil Appeal 491 of 2019) [2024] KEHC 9736 (KLR) (Civ) (8 August 2024) (Judgment). The latter case is an appeal by the same Respondent over same circumstances.
He also relied on the case of appeal: Kenya Broadcasting Corporation t/a KBC Radio Taifa & KBC English Service & 3 others v Keitany (Civil Appeal E160 of 2021) [2025] KEHC 9169 (KLR) (27 June 2025) (Judgment). This is another case where the Appellant was successful. The question of liability was not decided in the latter case. He further submitted that failure of the Appellants to verify the information that adversely mentioned the Respondent was malicious. Reliance was placed on the case of Phinehas Nyagah v Gitobu Imanyara [2013] KEHC 6662 (KLR):
In a similar defamation case, Vimalkumar Bhimji Deepar Shah v Geryl Otieno & another [2021] eKLR, the Court compared various authorities to determine whether to award damages.
In respect of costs reliance was placed on the c
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Zubeida Koome and Noah Otieno were the second and third Respondents in 4457 of 2013. The memorandum of appeal set forth the following grounds: That the learned magistrate erred in law and in fact in misdirecting herself by holding the appellants liable.
That the learned magistrate erred in law and in fact in failing to fully analyse the defence evidence.
That the learned magistrate erred in law and in fact in awarding excessive damages of Ksh. 1,500,000/=, aggravated damages of Ksh. 1,000,000/= and exemplary damages.
That the learned magistrate erred in law and in fact in issuing separate awards contrary to section 17(3) of the Defamation Act.
In short, the appellants contended that the learned magistrate misdirecting herself in holding the appellants liable. It is further argued that the trial court failed to fully analyse the defence evidence presented resulting in holding them liability. This they stated that the court erred in issuance of separate awards, which is said to be contrary to section 17(3) of the Defamation Act. Lastly, they challenged the award of excessive damages.
The sole Respondent filed four suits against three media houses, with the 1st Appellant herein sued twice, that is Kenya Television Network (KTN) and Standard Newspaper. The appeal herein relates to the KTN case, with its employees, Zubeida Koome and Noah Otieno. The appeal by the same Appellant in respect of the newspaper aspect is not part of this appeal. Further, Luke Anami’s case is not included in the appeal. This constitutes one of the most unclean and improper approaches to litigation, splitting a defendant’s cause of action into two separate cases and getting two different judgments.
Pleadings
The Respondent filed a lengthy plaint dated 22.07.2013. The Respondent filed suit against the appellants herein. They are alleged to have published words in Kiswahili translated as follows:
According to the report of the efficiency monitoring unit and report of the inspectorate of state corporations the finance manager…while the legal officer William Keitany allocated himself 21 houses, the largest quantity compared to others, a situation that forced the housing minister Soita Shitanda to sack them.
The Respondent averred that the reporting showed that: Two officers of NHC were involved in irregular allocation of houses.
The Respondent was a man of questionable character.
The Respondent breached fiduciary duty.
The Plaintiff had abused his public office.
The news was also said to have been relayed in the 9 pm prime time news in English language. The 3rd and the 2 nd Defendant authored and the 1 st Defendant published an article in its online newspaper ‘Standard Digital News’ with the headline banner: NATIONAL HOUSING MD FIRED
Appellant is said to have said the following words as follows:
The recent scandal by the efficiency monitoring unit and inspector of state corporations has consumed the national housing managing director, director James Ruitha and NHC Board Chairman Bosire Ogero:
It was indicated that the housing minister, Soita Sitanda, had indicated that the managing director had 4 houses, and the legal officer had 21 houses. The minister concluded that they were awaiting for the final report from the Ethics and Anticorruption Commission. The Respondent concluded that the words in the rolling banner meant that the Respondent was identified. It was their case that the report indicated him to be a man of questionable moral fiber. He stated further, that the Respondents were abusing office. The report also indicated that the Respondents were to be taken to court.
It was the respondent’s case that the words for the 7 pm news, was said to be false and malicious. The rest were not said to be so. The Respondent thus sought general damages, exemplary damages, aggravated damages and costs and interest of the suit.
The Appellants filed defence and stated that the minister for housing held a press conference and sacked three managers for allocating themselves more than one unit of houses at National Housing Corporation. They stated that they were entitled to comment on it since it is a matter of public interest. They stated that the publication was a matter of public interest and a fair comment.
The Appellants denied that the plaintiff was brought to disrepute, public scandal, and reputation was injured as a lawyer. They denied that they occasioned aggravated injury to his dignity, self-confidence and reputation.
Evidence
PW1, was William Kimutai Keitany, the Respondent. He relied on his witness statement and documents filed. He testified that he was the Plaintiff in all the consolidated suits. In so far as is relevant, he testified that he was the plaintiff in the 4 cases numbers 3524 of 2013, 3318 of 2013, 4457 of 2013, and 4473 of 2013. He stated that Mr. Shitanda was then a minister for housing. He stated that the Respondents maliciously and falsely published an article in the Standard. He stated that out of these allegations, investigations were initiated by EACC, which landed him in court. He was suspended and taken through a criminal trial. He was the acting Company Secretary around the time the investigations were made.
He stated that the defendants retracted the statements after the notice was issued. He adopted his witness statement. He denied getting 21 houses. He denied the publication was a fair comment. He stated that there was a publication Sakata ya Nyumba , which alleged that he had allocated himself 21 houses. He was not dismissed from employment. He denied being allocated 21 houses.
It was his case that the allegations by the Appellants were not true. Further, he testified that the 1 st Appellant apologized on 26.7.2012. The Defendants did not talk to him to verify the allegations.
It was his stated case that as a result of the publication, he was subsequently arrested and charged with abuse of office and acquiring wealth through fraud. He was suspended and taken through the criminal process. The court found that he had no case to answer in 2015 and he was back to the job in 2016.
In cross examination, it was his case that the Minister of Housing convened a press conference and the media houses attended the conference. He did not sue the minister. He was being paid half salary on suspension until he was acquitted in 2016. He was appointed acting corporation secretary in 2017.
It was his further case on cross examination that he was also charged with conflict of interest. That the Board of NHC would deal with the minister’s recommendations. Further, that the minister gave erroneous information and the Appellants published defamatory statements. The minister did not mention his name. He was the only legal officer with the name Keitany. There were 3 legal officers: Kennedy Nyariki and Kennedy Mundia. Elizabeth Mugo was the Company Secretary. He also testified that his fellow colleagues had shunned him. Members of his family had also shunned him.
He testified that the appellants did not verify his side of the story. Two videos were handed over to court, one which showed the minister of housing addressing three media about the ‘company.’ video 2 was showing that NHC managers were axed. The defendant video showed the managing director and 5 legal officers.
On cross examination he stated that he was admitted to the roll of advocates in 1996. He stated that he was charged of offence in 2013. He stated that the issue of houses allocated were brought out by the minister. He was charged in 2013 and acquitted in 2016. He stated that he was then a Company Secretary though he was not interviewed. He stated that EACC investigations were carried out in 2012. He stated that he was suspended from October 2013.
On cross examination by the advocates for the 1 st Respondent, he stated that the information on 21 houses was from the minister for housing. The minister called a meeting and said that the Respondent had been relieved of duties which was a lie. The reports did not affect his work. He stated he was compensated upon being acquitted.
On cross examination by advocates for KBC he stated that he was charged in 2013. He stated that the contents of the four media houses were more or less similar. He said there were other legal officers. The English audio indicated that the managing director was sacked and legal officer suspended. The clips did not say that he was sacked. He stated that when a policy is introduced, it takes time to be implemented. He received a letter suspending him from the managing director.
On reexamination, he posited that the charge had no relationship with the media reports. He stated that he was not correct to say he was the legal officer referred to in the publication.
DW1 was Luke Anami now working at the Federation of Kenyan Employers. He stated he published everything the minister said on the next day. He did not mention the Respondent. The minister referred the legal officer as William Keitany. They corrected the number of houses on the online version. The announcement from the minister mentioned Willian Keitany and no one in the newsroom knew who he was. The minister also indicated on a normal allocation to his own wife, though not covered in the report.
DW1 was then a reporter at the 1st Appellant. He testified that the publication was removed the same day it was published. This was after he talked to the Respondent. They published an apology. The report was on the website of NHC. On cross examination, it was his case that the apology was to the effect that the Respondent was not sacked. The information was in the public interest and the source was the minister for housing.
He stated that this was a matter that does not touch on Keitany. It was his evidence that since the matter touched on corruption it was in public interest. He stated it was not up to him to decide whether the minister was saying the truth or not.
DW2 was Nicholas Omondi who was the news reader on the material day. He recalled it was a matter of national importance. He stated that he could feel pained if the words were not true. The next witnesses relate to the KBC case, that is DW3 and DW4. There is no need to deal with the same in this appeal.
DW3 was Martin King’asia. He worked with KBC. The news was given by a reporter who attended the press conference. On cross examination, he testified that he read the news as was given to him. They were told that the Respondent had been suspended. That his duty was to report accurately.
DW4 was Grace Matego. She introduced herself as news presenter at KBC. She read the news as it was presented. On cross examination, she testified that she did not contribute to the content.
DW5 was Zubeida Kananu Koome, who stated to have worked for KTN since 2007. She was an editor, news reporter and reader at KTN. She was not present at the press conference. She quoted what the minister said. On cross examination, it was her case that she did not make it conclusive that the Respondent had allocated to himself 21 houses. She was a political reporter in 2012. She had not known the Respondent.
On cross examination she said that she reported what the minister said. According to her, she stated that it was not conclusive that the 21 houses were allocated. According to her, it was allegations by the minister. The minister in turn relied on the Efficiency Monitoring Unit. She stated that the minister did not mention his name. However, he was the only legal officer who was charged.
DW6 was Noah Otieno Owich. He was a reporter at Standard Group. He did not go to the press conference. He took the statement as given by the minister. He testified on cross examination that he did not mention the Respondent. He had no reason to doubt what the minister said.
DW6 continued that he worked for the 1 st Appellant. He stated that the housing minister called a press conference which was covered by Michael Karanja and Luke Anami. He stated that he was working for the Standard Group. On cross examination, he stated that he watched the entire tape of the conference. The minister indicated that a legal officer was allocated 21 houses. The names were from briefings from the minister to the reporters in the press conference. He stated that he did not agree with the Respondent that the words were false. He says if the minister said anything false, he was to blame. He had no reason to doubt the minister by virtue of office.
DW7 was Ann Wairimu. She was a sub-editor with the People’s newspaper. She attended the press conference and questions and answer session. She did not manufacture any story. She also testified that the MD made the correction. According to her, what was published was what the minister said. It was her case on cross examination that she could not tell whether what the minister said was true or not. They did not verify the facts from the Respondent.
It was her case on cross examination that she could not tell whether what the minister said was true or not. They did not verify the facts from the Respondent.
Submissions
Parties filed humongous submissions. The appellants laid down the duty of the court. They stated that the minister for housing had a press conference on 24.07.2012 where he named the Respondent as having taken 21 houses. The clips of what the minister said was admitted in evidence. He gave the information on a position of authority. Further, the minister subsequently clarified and the clarification was not contradicted. Reliance was placed in the case of Wycliffe A Swanya v Toyota East Africa Ltd & another [2009] eKLR , where the court of appeal [P. K. Tunoi, P. N. Waki, and D. K. S. Aganyanya] posited as follows:
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 defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.
(iii) That it was published maliciously
(iv) In slander, subject to certain exceptions, that the plaintiff has suffered special damage.
It was their submission that malice in defamation need not always be proved by direct evidence of ill will. It may be inferred from the circumstances of the publication itself. Where the words used are so exaggerated, disproportionate, or utterly beyond the facts as to suggest recklessness or spite, the court may find that malice is established. They relied on the decision of Phinehas Nyagah v Gitobu Imanyara [2013] KEHC 6662 (KLR) , where the court held as follows:
…Malice can be founded in the publication itself if the language used is utterly beyond the facts. The failure to inquire 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...
The Appellants relied on Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 where the learned authors opined as hereunder in deciding whether a statement is defamatory:
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.
They stated that the court failed to consider whether the publication was defamatory. It was their submissions that the publication be seen in context. Reliance was to be placed on the case of Hellen Makone versus Francis Kahos and another [2004] eKLR, where the court of appeal defined malice as:
What then is malice in law?
The most definitive consideration of malice is the statement of Lord Diplock on the case of Horrocks versus Lowe {1975} AC page 135 where at page 151 and 152 he stated:-
Judge and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed.
Regarding the question of qualified privilege they placed reliance on the case of Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR ), where the court of appeal stated as follows:
16. Moreover, the intention of the Respondent’s journalist was to report on the public interest issue pertaining to corruption. For that reason the defence of qualified privilege was available to the Respondent. Besides, the appellant being a public figure ought to expect unflattering statements made about him since it came with the territory.
It was their submissions that the actual words complained of and the substance must be proved by the plaintiff. Further, reliance was made on the case of Simeon Nyachae V Lazarus Ratemo Musa & Another [2007] KEHC 885 (KLR ) , where, M. Warsame J, as he then was, stated as follows:
In an action for defamation, the actual words complained of and the substance must be proved by the plaintiff. And it is not sufficient to show the defendant made defamatory statements. The plaintiff must give particulars of the facts and matters from which the malice is to be inferred. He must show to court that the defendant acted maliciously. In my humble view, words are not defamatory perse, there has to be a statement of fact or expression of opinion or imputation conveyed by them, which will have the effect of defaming an individual.
They submitted that Order 7 Rule (2) of the Civil Procedure Rules provides as follows:
(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.
They submitted that the aggravated damages are awarded only if the conduct increased injury to the claimant. Reliance was placed in the case of Heziekiel Oira v Standard Limited & another [2016] eKLR . The case was affirmed by the court of appeal [W Karanja, HM Okwengu & MSA Makhandia, JJA] in Oira v Standard Limited & another [2022] KECA 1361 (KLR ) , where the Court of Appeal held as hereunder:
I would not award punitive and exemplary damages as there was no evidence of the conduct of the defendants before, during and after the trial of the suit herein that the defendants republished the alleged defamatory words of and concerning the plaintiff and with a sinister motive.
They urged the court to allow the appeal.
The Respondent filed submissions which he started with a prologue as hereunder:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls: Who steals my purse steals trash;
''tis something, nothing; ''
Twas mine, ''tis his, and has been slave to thousands:
But he that filches from me my good name Robs me of that which not enriches him and makes me poor indeed.
William Shakespeare, Othello, Act 3 Scene 3, 155-161.
He submitted that the law of defamation is concerned with protection of a person’s reputation. Reliance was placed on the Court of Appeal decision in S M W v Z W M [2015] eKLR:
A statement is defamatory of the person of whom it is published if it tends to lower him/ her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.
It was his submission that the Appellants published a report in which they adversely mentioned the Respondent as having been sacked as an employee of NHC after fraudulently allocating himself 21 houses. The news item reported that:
…kwa mujibu wa Ripoti ya Kitengo cha Kusimamia Utendaji Bora na Ripoti ya Kitengo cha Ukaguzi wa Mashirika ya Serikali ni kuwa Meneja wa Fedha Manasseh Wandabwa alijitengea takriban nyumba tisa kinyume na sheria huku afisa wa Sheria William Keitany akijitengea nyumba ishirini na moja idadi kiubwa Zaidi ikilinganishwa na wengine hali ililazimu waziri wa nyumba Soita Shitanda kuwafuta kazi…
It was his additional submission that in KTN Prime news bulletin in English, the 3rd Appellant reported that:
…The Housing Minister has sacked the Parastatal’s Finance Manager Manasseh Wandabwa who allegedly got 9 houses and the legal officer william keitany…
It was submitted that these words imputed dishonesty and abuse of office, exposing the Respondent to public hatred, contempt, and ridicule. He stated that the Court of Appeal in Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR, stated as follows:
…In the 4th Edition Vol. 28 of Halsbury''s Laws of England, the following statement appears at page 23: 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. The reasonable man was explained in Winfield & Jolowiez on Tort 8th Edition at P. 255 as:
The answer is the reasonable man. This rules out on the one hand persons who are so lax or so cynical that they would think none the worse of a man whatever was imputed to him, and on the other hand those who are so censorious as to regard even trivial accusations (if they were true) as lowering another''s reputation or who are so hasty as to infer the worst meaning from any ambiguous statement. It is not these, but the ordinary citizen, whose judgment must be taken as the standard….
The Respondent submitted that the Appellants’ words implied that he was corrupt, dishonest, and engaged in fraud against NHC and, by extension, the State, especially in light of the country’s frequent corruption scandals. In respect to defamation, he relied on the case of Selina Patani & another v Dhiranji V. Patani [2019] eKLR , where the court of appeal [Karanja, Odek & Kantai, JJA] posited as follows:
We have analyzed the judgment of the High Court and are satisfied that the Judge correctly identified and considered the elements of the tort of defamation. The Judge cited Winfield and Jolowitz on Tort, 8th Edition page 254 as well as excerpts from Halsbury’s Laws of England, 4th Ed. Vol 28 paragraph 10 thereof. In rehashing, we note the ingredients of defamation were summarized in the case of John Ward -v- Standard Ltd, HCCC 1062 of 2005 as follows: -
(i) The statement must be defamatory.
(ii) The statement must refer to the plaintiff.
(iii) The statement must be published by the defendant.
(iv)The statement must be false.
The Respondent argued that the appellants argued they were merely relaying the Housing Minister’s press briefing in the public interest, insisting such statements should be treated as unquestionable truth. However, it was countered that this is not a recognized legal defence, as a Minister’s statement is not beyond challenge, and defamation law remains central to the constitutional rights of all Kenyans. Reliance was placed on the case of Gideon Mose Onchwati v Kenya Oil Co. Ltd & another [2015] [2015] KEHC 7444 (KLR ) , where R.E. Aburili, posited as follows:
On the first issue, my commencement point is that the court in deciding defamation cases must balance the provisions of Articles 33, 34 and 35 of the Constitution, dealing with freedoms of expression and media freedom and the individual’s right to access information on the one hand and Article 28 in respect of the inherent dignity of every person which dignity must be respected and protected. On the right to access information and the freedom of expression, the words of Lord Denning MR in Fraser v Evans &others (1969) All ER 6 are instructive that:
There are some things which are of such public concern that newspapers, the press and indeed everyone is entitled to make known the truth and to make their comment in it. This is an integral part of the right of speech and expression. It must not be whistled away.
They stated that the 2nd and 3rd Appellants fell short of Code of Conduct for the Practice of Journalism in Kenya. The code provides a guide on how journalists should abide by certain principles in their work. Section 1 reads:
1. Accuracy and Fairness
…(3) Comments shall be sought from anyone who is mentioned in an unfavourable context and evidence of such attempts to seek the comments shall be kept…
The code of conduct was not part of the pleadings and irrelevant for this case. They contended that the Appellants’ actions could be excused within the pretext of qualified privilege. In the case of Musikari Kombo v Royal Media Services Limited [Supra], the Court clarified on qualified privilege within the realm of public interest as follows:
…26. Was the defence of qualified privilege available to the Respondent? The essence of this defence is an attempt to balance two competing but vital interests in society; the individual’s right to have their character and reputation protected and safeguarded from false, unwarranted and malicious or scurrilous attacks on the one hand, and the public’s right to know as exercised and fed by freedom of expression, which is an indispensable feature of a free and democratic society as well as a major tool for public accountability. See Kagwiria Mutwiri Kioga & another vs. Standard Limited & 3 others [2015] eKLR. The defence is entrenched under Section 7 of the Defamation Act.
27. In Reynolds vs. Times Newspapers [1999] 4 ALL ER 609 the House of Lords went on further to set out a criteria for determining whether a publication is subject to qualified privileged as herein under:
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
The nature of the information, and the extent to which the subject matter is a matter of public concern.
The source of the information. Some informants have direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
The steps taken to verify the information.
The status of the information. The allegation may already have been the subject of an investigation which commands respect.
The urgency of the matter. News is often a perishable commodity.
Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed.
Whether the article contained the gist of the plaintiff’s side of the story.
The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
The circumstances of the publication including the timing .
He submitted that the 3 rd Appellant admitted the minister never mentioned the Respondent’s name in the recordings. Consequently, the trial Court correctly found no evidence to the contrary.
He argued that the damages and aggravated damages were proper. Reliance was placed on the case of William J Butler v Maura Kathleen Butler [1984] KECA 34 (KLR) and Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah & Company advocates [2013] KECA 252 (KLR). Further reliance was placed on the case of Keitany v Nation Media Group Limited & another (Civil Appeal 491 of 2019) [2024] KEHC 9736 (KLR) (Civ) (8 August 2024) (Judgment). The latter case is an appeal by the same Respondent over same circumstances.
He also relied on the case of appeal: Kenya Broadcasting Corporation t/a KBC Radio Taifa & KBC English Service & 3 others v Keitany (Civil Appeal E160 of 2021) [2025] KEHC 9169 (KLR) (27 June 2025) (Judgment). This is another case where the Appellant was successful. The question of liability was not decided in the latter case. He further submitted that failure of the Appellants to verify the information that adversely mentioned the Respondent was malicious. Reliance was placed on the case of Phinehas Nyagah v Gitobu Imanyara [2013] KEHC 6662 (KLR):
In a similar defamation case, Vimalkumar Bhimji Deepar Shah v Geryl Otieno & another [2021] eKLR, the Court compared various authorities to determine whether to award damages.
In respect of costs reliance was placed on the c
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