Munene v Gisesa & another (Civil Appeal 369 of 2019) [2025] KECA 2115 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed even prisoners can sue for defamation, but awarded only Ksh.200,000 because imprisonment limits reputational harm.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the statement in question was defamatory of the appellant
- 2.Whether the trial Judge erred in failing to award damages to the appellant
- 3.Whether the appellant, a prisoner serving a life sentence, was capable of being defamed
- 4.Whether the defence of fair comment/honest opinion on a matter of public interest was available to the respondents
- 5.Whether malice could be imputed to the respondents for failure to verify the information before publication
Key legal issues
#Whether the article was defamatory of the appellant
The article, which named the appellant by his real name as involved in the formation of the notorious Kwekwe Squad, was defamatory on its face when tested objectively against the reasonable person.
The test is objective: what a reasonable person would perceive, not the publisher’s intention. The article named the appellant as a founder or member of a notorious crack unit linked to forced disappearances and killings. Although the article reported allegations rather than established facts, naming the appellant as a founder member of the unlawful unit said to be responsible for Jacob Juma’s death was the appellant’s complaint and satisfied the elements of defamation.
Whether a serving prisoner serving a life sentence is capable of being defamed
Yes. A prisoner retains all Bill of Rights rights except those clearly incompatible with detention, and the right to reputation endures even while within prison walls.
Articles 28, 33(3) and 51 read together protect prisoners’ dignity and reputation, and the Persons Deprived of Liberty Act, 2014 does not exclude the right to reputation. Incarceration does not absolve a publisher; it only affects the quantum of damages. Reputation matters to prisoners for privileges, remission and commutation through the power of mercy.
Whether failure to seek the appellant’s side of the story amounted to malice
Failure to verify with the readily available appellant rendered the publication careless and reckless, imputing malice and defeating the fair comment defence.
The 1st respondent admitted he never sought to establish the truthfulness of the story from the appellant, who was readily available in prison. Responsible journalism requires fact-checking; the law imputes malice where publication is reckless, careless or made without due diligence, and such failure forfeits the statutory and common law defences.
Quantum of damages
Although defamation was proved, only nominal damages of Ksh.200,000 were appropriate because the appellant’s reputational loss was minimal given his incarceration.
The appellant’s two witnesses, after clarification, resumed their relationship with him, and no prisoner or prison officer testified to any change in how the appellant was viewed. His interaction with the world of reasonable persons being restricted, the trial court’s nominal figure of Ksh.200,000 was not disturbed.
Whether the article was fair comment on a matter of public interest (dissent of Gatembu, JA)
The dissent would have found the article fair comment on a matter of public interest, honestly held, with no malice imputable since the 1st respondent made efforts to fact-check and the appellant declined to meet him.
The dissent accepted that matters of forced disappearances, arbitrary arrests and extrajudicial executions are of grave public interest. On the record, the 1st respondent wrote to the Inspector General, made several trips to Kamiti, and the appellant declined to meet him; on the test of honesty, culpability does not attach. Accordingly the dissent would have dismissed the appeal.
Legal principles established
#- Prisoners and detained persons retain the right to have their dignity and reputation protected; imprisonment does not absolve a defendant of liability for defaming an inmate, though it bears on quantum.
- A defendant who republishes defamatory material without verifying its truthfulness acts recklessly, is deemed to have published with malice or without reasonable care, and forfeits the defences available in defamation.
- The defences of justification, fair comment and qualified privilege are unavailable where the defendant failed to ascertain the accuracy of the information before dissemination.
Court orders
#- 1.Judgment of the High Court dated 7th March 2019 set aside and substituted with an order allowing the appellant’s suit to the extent that a declaration issues that the article was defamatory of the appellant
- 2.General damages for defamation awarded to the appellant in the sum of Ksh.200,000.00
- 3.Appellant awarded costs of the appeal and of the suit before the High Court, with interest at court rates
- 4.Interest on the decretal amount to accrue from the date of the High Court judgment until payment in full
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Held the article was defamatory of the appellant on its face; rejected the fair comment defence because the 1st respondent recklessly published without verifying; held prisoners retain the right to reputation; found defamation proved but awarded only nominal damages of Ksh.200,000, allowing the appeal in part.
Ultimately, my finding is that this appeal partially succeeds. I set aside the judgment of the High Court dated 7th March 2019 and substitute therefor an order allowing the appellant’s suit to the extent that I issue a declaration that the article in question was defamatory of the appellantp. 13
Wrote the judgment
Concurred wholly with the judgment and reasoning of W. Karanja, JA, adding nothing further.
I have had the advantage of reading the judgment in draft of my sister W. Karanja, J.A. and I wholly agree with the reasoning and conclusion therein.p. 13
Wrote the judgment
Found the article was fair comment on a matter of public interest; held there was evidence the 1st respondent attempted to fact-check and the appellant declined to meet him, so malice could not be imputed; would have dismissed the appeal entirely.
I would therefore dismiss the appeal.p. 16
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi HCCC No. 224 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under Article 164(1) of the Constitution and the Court of Appeal Act (the court exercised its first-appeal duty to re-evaluate evidence)
Relief refused
#Enhanced damages of Ksh.10,000,000 as urged by the appellant
The appellant, being in prison with restricted interaction with the world of reasonable persons, suffered only minimal damage and deserved only nominal damages; the trial court’s proposed figure was not disturbed
Costs
The appellant is awarded costs of this appeal and those before the High Court with interest at court rates; interest on the decretal amount to accrue from the date of the High Court judgment until payment in full.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, my finding is that this appeal partially succeeds. I set aside the judgment of the High Court dated 7th March 2019 and substitute therefor an order allowing the appellant’s suit to the extent that I issue a declaration that the article in question was defamatory of the appellant, and he is awarded Ksh.200,000.00 as general damages for defamation.
The right to their reputation is not one of the rights excluded under the Persons Deprived of Liberty Act, 2014. Indeed, the right endures even while within prison walls.
A defendant who republishes such material without verifying its truthfulness acts recklessly and is deemed to have published it with malice or without reasonable care, thereby forfeiting the statutory or common law defences available under the tort of defamation.
A statement is defamatory of the person of whom it was 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.
The fact that the appellant was a prisoner as at the time the defamatory article was published does not absolve the respondents of culpability.
Issues in the judgment
#The majority and the dissent reach contradictory findings of fact on whether the 1st respondent sought the appellant’s side of the story before publication: the majority finds he never sought the appellant’s comments, while the dissent finds he made several trips to Kamiti and the appellant declined to meet him. This directly affects the malice holding.
The dissent attributes malice findings to the trial judge quoting a rolled-up fair comment defence, but the majority reverses the trial judge’s conclusion that no malice was proved; the conflicting holdings are not reconciled in a single line of authority.
Minor typographical/orthographic errors in the transcript, e.g. 'Wilradeolia v Simpson' (likely Walfred/Grant v Torstar) and recurring 'sufiered/efiorts' OCR artifacts.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munene v Gisesa & another (Civil Appeal 369 of 2019) [2025] KECA 2115 (KLR)", Case Analysis (2025). Nairobi Civil Appeal (arising from Nairobi HCCC No. 224 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2115/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.