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Court of AppealDismissedCivil Appeal (memorandum of appeal dated 5th April 2019)· [2025] KECA 520 (KLR)

Daniel Onchieku v Juma Kwayera & 1 other

Court of Appeal
21 March 2025
PKP. O. KiageLAL. AchodeGOG. V. Odunga
3,912 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a defamation appeal because the plaintiff never quoted the exact offending words in his pleadings.

What this practically means

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Executive summary

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The appellant, an NSSF employee, sued The Standard Limited and Juma Kwayera over a 15th March 2009 newspaper article headed "Now Police dragged into cash Scandal at NSSF", claiming damages for defamation. The High Court at Nairobi (Thuranira J.) dismissed the suit on 29th June 2018, finding the appellant had failed to prove his case on a balance of probabilities. On first appeal, Kiage, Achode and Odunga JJA, in a single unanimous judgment, reconsidered the evidence afresh as required on a first appeal. The court identified two principal issues: whether the appellant proved he was defamed, and if so, the damages payable. It applied the objective test for defamation and held that a plaintiff must plead the actual defamatory words specifically in the plaint, that describing their substance, purpose or effect is insufficient, and that failure to quote the words referring to the appellant was fatal, leaving the court no words to subject to the reasonable-man test. The court also found that the appellant, who was the sole witness, failed to show by independent evidence that his reputation was lowered in the estimation of right-thinking members of society, and that he failed to prove the article referred to him or was false. The court declined to assess a hypothetical award of damages, terming such an exercise academic. The appeal was dismissed with costs to the respondents, affirming the High Court judgment in its entirety.

Key legal issues

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01

Whether the appellant proved that the impugned article referred to him

Holding

The court agreed with the trial judge that the appellant merely attached the article to the plaint and left it to the court to deduce the defamatory part; this ingredient was not proved

Reasoning

The article was a full-page piece referring to various NSSF officers, and the appellant asserted he was not the officer in charge of the Rents and Income Department as stated. The court held it was necessary for him to demonstrate that the article identified him as its subject by name or by inference. Since he simply attached the article and left the court to discern what was offensive, the identification ingredient failed.

p. 6
02

Whether the defamatory words were specifically pleaded in the plaint

Holding

Failure to quote in the plaint the defamatory words specifically referring to the appellant was fatal to the suit, because the court was left with no words to subject to the reasonable-man test

Reasoning

Relying on Veronica Wambui v Michael Wanjohi Mathenge and Wareham v Kenya Post Office Savings Bank, the court held that in defamation the actual words complained of must be specifically pleaded; describing their substance, purpose or effect is not enough. The paragraphs of the plaint merely described the substance of the alleged words, leaving the court no words against which to apply the objective reasonable-man test.

p. 7
03

Whether the appellant proved that the article was false and defamatory and injurious to his reputation

Holding

There was no evidence from any independent witness that the words caused anyone to think less of the appellant, so the injury to reputation was not proved

Reasoning

The appellant adopted a witness statement that did not disclose the specific defamatory words complained of. Defamation being an injury to reputation, evidence must show what others think of the plaintiff. The only evidence was the appellant's own testimony about negative gestures and attitudes, and no independent witness testified that the words caused anyone to think less of him. The burden lay on the appellant under section 107 of the Evidence Act.

p. 7

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the whole evidence afresh, making due allowance for not having seen or heard the witnesses
  • In an action for defamation, the actual words or part complained of must be specifically pleaded and set out in the plaint; describing their substance, purpose or effect is insufficient
  • A plaintiff in defamation must prove that the statement referred to him, was false, and was defamatory, lowering his reputation in the estimation of right-minded persons in society
  • Cases are tried and determined on the pleadings, and only evidence of facts pleaded is to be admitted; a party bearing the burden of proof fails if the evidence does not support the pleaded facts

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
High Court at Nairobi
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's appellate mandate (not expressly cited; appeal from High Court defamation suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Onchieku v Juma Kwayera & 1 other", Case Analysis (2025). Civil Appeal (memorandum of appeal dated 5th April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/520/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.