Stephen Njoroge Kariuki v Wahinya Kugwa

4. c. Exemplary damages Ksh. 100,000/= d. Costs of the suit and interest The court found that the Respondent had suffered damage to his reputation by statements published by the Appellant. The Appellant was aggrieved by the finding and filed the Memorandum of Appeal dated 12.05.2024. The appeal is on the trial court’s finding on its judgment and is based on 6 grounds, to wit: a. That the learned magistrate erred in law and in fact by disregarding the evidence of the appellant which was not shaken. b. That the learned magistrate erred in law and in fact by finding that the Respondent had proved his case when he clearly had not. c. That the learned magistrate erred in law and in fact by disregarding the documents produced by the Appellant. d. That the learned magistrate erred in law and in fact by disregarding the fact that the Respondent did not prove its case as per the threshold required by law. e. That the learned magistrate erred in law and in fact by disregarding the appellant’s submission and testimonies and authorities and who was acting in person and verbatim testimonies of other parties. f. That the trial court erred in fact and in law by delivering the ruling against the weight of evidence. Pleadings 5. The Respondent filed suit vide a plaint dated 19th October 2009, stating that he was a paralegal employed by the Judiciary for the preceding ten years. He averred that the Appellant was a party in HC Succession Case No. 83 of 2006. He further stated that, on 29.10.2008, the Appellant published a letter addressed to the Registrar of the Court, alleging that the Respondent had removed evidence in the said succession matter. The Respondent contended that the publication, purportedly based on evidence, was in fact false, defamatory, and intended to vex him. 6. The Respondent particularized the loss and damages suffered. He prayed for: 7. a. An order compelling the Appellant to issue a written apology and a retraction letter, copied to the Chief Justice, the Rules Committee, and the Registrar of the High Court at Nairobi. b. Damages, including aggravated or exemplary damages. c. Costs of the suit, together with interest Though indicated to be at page 3, the defence was not included in the record. The court had to search for the same. The nature of the defence was that the allegations were true and justified, in fact. Evidence 8. The matter was set for hearing on 23.10.2019. PW1 Wahinya Kugwa stated that he was the Respondent and that he had sued for defamation. He adopted his statement as his evidence in chief. He stated that the letter by the Appellant dated 29.10.2008 triggered this action which was addressed to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 2

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Registrar alleging that the Respondent tampered with the case. He stated that the Appellant was party to a Succession Cause HC 83 of 2006 and resulted from events of 17.10.2007. 9. The Respondent testified that the Appellant had falsely claimed that he (the Respondent) had removed vital documents from the court file in Succession Cause HC 83 of 2006 and hid them. He stated that the letter was acted on by the Deputy Registrar High Court, Family Division, and the Executive Officer who established that there was no interference. He testified that the Appellant never apologized nor retracted the letter which letter remains in his personal file with his employer and has affected him adversely. 10. In cross-examination he stated that he was in court on 17.10.2007. He stated that the Appellant never complained to him but with the Chief Court Administrator. He stated that he was informed of the same by the Executive Officer. In re-examination he stated that the Appellant framed him in the complaint and that he had a right to know what was in the complaint. 11. DW1, Stephen Njoroge Kariuki stated that on 17.10.2007, he was in a court session in Succession Cause HC 83 of 2006, before Hon. Kubo J. He continued that the Hon. Judge stated that there were missing papers from the court file. He stated that the Respondent was the court clerk and was questioned about the missing documents and he responded that they would be at the registry. The Appellant stated that they were asked to step out as the Respondent goes to look for the same. He stated further that the Respondent came back with the papers and that no apology was made. He stated that a ruling was made and that he later lodged a complaint to Chief Court Administrator. 12. On cross-examination he stated that he did lodge a complaint in 2007. He stated that on 17.10.2007, the loss of documents was noted orally and that no apology was made. He stated that his complaint was for investigation of the court clerk as he stated that the Respondent had corruptly removed the documents. He stated that the Deputy Registrar never called him to his office. It was his position that he never apologized. 13. DW2, Florence Muthoni stated that DW1 was her husband. She stated that there was a day they went to court to do succession where the judge noted that there were missing documents from the file and asked to step outside. She stated that the Respondent went out and returned with the papers and the matter proceeded. On cross-examination she stated that she could not tell which documents were missing. 14. DW3 Susan Njeru Waweru stated that the Appellant is her father-in-law. She stated that on 17.10.2007 they attended a Succession Case. She stated that the judge noted that there was a missing document and that the clerk indicated that it was in the registry and that he brought it and that the case proceeded. 15. On cross-examination, she stated that she used to attend the succession cause and that there were ten members involved. She further stated that she did not know which document was missing. She testified that they were asked to step aside and later proceeded with the matter, which, to date, has never been concluded. This part cannot be true as there are decisions of the court to the contrary in the record of appeal. Submissions 16. I have read submissions which are repetitive and regurgitate the same statements in evidence. It is important to note that the court had to conceptualize, problematize and contextualize the submissions for the parties as they were referring to the summaries in authorities without contextualization. 17. The Appellant filed submissions dated 09.02.2024. He stated that the suit was reinstated without serving him. This part is otiose as the question before me is the decision of 06.04.2020 and nothing else. The decision to reinstate is not before me. He submitted that despite proceedings, the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 3

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was no longer a judge’s clerk hence his complaint took action. The irony of this submissions will be apparent shortly. He submitted that he had a right of expression which was ignored by the trial court. Reliance was placed on New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The case established the "actual malice" standard for public officials suing for defamation, requiring them to prove the publisher knew the statement was false or acted with reckless disregard for the truth. 18. The Appellant submitted that he possessed a right to freedom of expression, which he argued was disregarded by the trial court. In support of this contention, he relied on New York Times Co. v. Sullivan, 376 U.S. 254 (1964). This locus classicus case, established the “actual malice” standard applicable to public officials pursuing defamation claims. Under this standard, such a claimant must prove that the publisher either knew the impugned statement was false or acted with reckless disregard as to its truth. In that case the court stated: The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. 19. He submitted that his evidence was unshaken. On the other hand the respondent did not counter the solid evidence. Further reliance was placed on the case of Royal Media Services Limited & another v Jakoyo Midiwo [2018] eKLR, where the Court of Appeal [Ouko (P), Warsame & Otieno-Odek, JJA)] posited as hereunder: In our considered view, being in public office or for that matter a Member of Parliament, does not mean consent to defamation. One of the hallmarks of journalism is publishing accurate information. In the instant case, the record shows that what was published was a non-factual and erroneous information. There can never be public interest to air or broadcast incorrect or defamatory information. A caveat should be given that true and accurate information is not defamatory. 19. In Godwin Wanjuki Wachira -v- Okoth [1977] KLR 24, the High Court had this to say: “I may go further and hold that failure to check records to ascertain the true position may very well be negligence on their part… the defendants must be deemed to have acted recklessly in publishing the distorted story… I hold that the author published the defamatory statement complained of… with reckless indifference as to whether it was just or unjust.” 20. He further submitted that the letter was not published. Reliance was placed on the case of Knuppfer v. London Express Newspaper Ltd [1944] AC 116 (House of Lords), where the House of Lords held that for an individual to succeed in a defamation action based on words referring to a group or class, the words must be reasonably understood to refer specifically to that individual. Mere membership in a group criticized in general terms is insufficient unless the group is so small, or the circumstances so specific, that the words can reasonably be taken to point to the plaintiff. 21. The Respondent posited that the record of appeal is incomplete as the defence was not included. This is a valid point but for another day. These are questions to be raised at directions stage. 22. He posited that as a result of the defamatory words, he was brought to public odium. He stated that even evidence was scanty as the Appellant’s witnesses did not know which documents were missing. He further stated that the alleged incident took place in 2007 but there was no action until 2008. He stated that the proceedings of 17.10.2008 only covered one activity, that is, delivery of the ruling. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 4

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23. Further he submitted that the appellant failed to offer an apology despite a demand. His submissions were that the respondent proved his case on the required standard. Reliance was placed on the case of Agnes Zani v Standard Group Limited [2019] eKLR, where the court of appeal [NAMBUYE, KARANJA & KANTAI, JJ.A] noted as follows: If more is required, in the 4th Edition Volume 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 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 Page 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.” 24. He submitted that the specific ingredients of the tort of defamation was set out by the lower court and found to exist. It was thus his submissions that the case was well founded and reasonable. Reliance was placed on the case of Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR), where the court of appeal [AR Visram, W. Karanja, MK Koome] set out the ingredients of defamation as hereunder: It follows that a claimant in a defamation suit ought to principally establish in no particular order: i. The existence of a defamatory statement; ii. The defendant has published or caused the publication of the defamatory statement; iii. The publication refers to the claimant. [See this Court’s decision in Nation Media Group & Another vs. Hon. Chirau Mwakwere –Civil Appeal No. 224 of 2010]. 21. It is not in dispute that the broadcasts in question were aired by the respondent as pleaded. What is in issue is whether the offending words in those broadcasts were concerning the appellant. We agree with the learned Judge that the general rule as to who can sue in a claim for defamation is that it is the person against who the defamatory words have been published. This much was appreciated by Lord Atkin in Knupffer vs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 5

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London Express Newspaper Ltd. [1944] 1 ALL ER 495 thus:“The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff.” 25. The respondent urged the court to dismiss the appeal. Reliance was placed on the case of Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah & Company advocates [2013] KECA 252 (KLR). In that case the Court of Appeal stated as follows: The latitude in awarding damages in an action for libel is very wide and we must avoid substituting our own views on what the damages should have been against the award by the judge – Tanganyika Transport Co. Ltd v Ebrahim Nooray [1961] EA 55. Tunoi, JA (as he then was) in Civil Appeal No. 314 of 2000 Johnson Evan Gicheru v Andrew Morton & Another [2005] e KLR 1 had this to say on assessment of damages: “ In action of libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action, and in court during the trial: PRAUD V GRAHAM 24 Q.B.D.53, 55. In BROOM V CASSEL & CO [1972] A. C. 1027 the House of Lords stated that in actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitution in integrum has necessarily and even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by-stander of the baselessness of the charges. As Windeyer J. well said in Uren V John Fairax & Sons Pty.ltd., 117 C.l.r. 115,150: “It seems to me that, properly speaking, a man defamed does not get compensation for his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.” I would think that in the instant case to arrive at what could have been said to be a fair and reasonable awards the learned trial Judge could have drawn considerable support in the guidelines in Jones V Pollard [1997] EMLR 233.243 and where a checklist of compensatable factors in libel actions were enumerated as:1. The objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published, and any repetition. 2. The subjective effect on the plaintiff's feelings not only from the prominence itself but from the defendant's conduct thereafter both up to and including the trial itself. 3. Matters tending to mitigate damages, such as the publication of an apology. 4. Matters tending to reduce damages. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 6

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5. 26. Vindication of the plaintiff's reputation past and future. As a parting shot, they relied on the case of Nation Media Group Limited v Ndegwa [2023] KEHC 21127 (KLR). This case was to buttress the damages awarded. It is unnecessary as the entire appeal is on liability. Analysis 27. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: “ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 28. The duty of the first appellate court was discussed by the Court of Appeal [Clement De Lestang, VP, Duffus and Law JJA] in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law JA held follows;“ .. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 29. The appeal presents one issue for determination, being liability for libel. The question of damages is not before the court. However, as usual in defamatory matters, the award of exemplary damages depends on the defendant offering a defence of justification and failing to prove the same to the required threshold. To avoid re-inventing the wheel, I will reproduce my discussion in the case of Ngonze v Ng’ang’a (Civil Suit 82 of 2017) [2024] KEHC 11261 (KLR) (26 September 2024) (Judgment) - Civil Suit 82 of 2017, on what defamation is and its position in constitutional dispensation as follows: I understand that the fundamental rationale of the protection against defamation is of constitutional and human rights imperative. I therefore inevitably proceed with a rider to balance the provisions of Articles 33, 34 and 35 of the Constitution. The said provisions respectively deal with the fundamental right to the freedoms of expression, media and access to information. Consideration also is to be inevitably granted to Article 28 in respect of the inherent dignity of every person which dignity must be respected and protected. The freedom of the media is guaranteed by Article 34 of the Constitution as follows: “Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33(2).” 30. Consequently, under Article 33(2)&33(3) of the Constitution, every person has the right to freedom of expression which does not extend to, among others, propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or is based on any ground of discrimination specified or contemplated in Article 27(4) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 7

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and that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. 31. On the right to access information and the freedom of expression, Lord Denning MR stated in Fraser v Evans & others (1969) All ER 6 as follows: “ 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.” Lord Coleridge, CJ in Bernard & another v Perriman (1891-4) ALL E.R 965had previously stated that: “The right of speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue there is no wrong committed.” 32. It is not in contention that the defendant published a letter to the Registrar on 29.10.2008 wherein he dubbed the same - Complain On Removal Of Court File Evidence Documents In Aforesaid Succession Cause Court File [sic]. In it he stated partially: During the hearing proceedings on 17th October 2007 Hon. Justice Kubo discovered that some essential documents were removed from the court file. Hon. Justice Kubo asked the court clerk one Mr. Kugwa before the parties as to where are the evidence documents which were in the file during the previous proceedings? The same aforesaid court clerk stated that the missing documents ae somewhere in the registry. 33. Were these words defamatory? Were they true: the Appellant maintains that they were true. However, he was stoically silent on which documents were removed. Further, the findings of relevant authorities were that there were no documents removed. All the witnesses in the case could not say which documents were removed and by the Respondent. In this connection can the statement, be said to be defamatory? What then is defamation? As succinctly put by this Court in S M W vs. 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.” 34. In this case the Respondent was a Court Clerk serving a judge. His duty was to assist the court. The court before whom he was appearing did not find him to have removed any document. To the contrary it was the Appellant misleading the court as to the nature of orders given by the court. In the case of Miguna Miguna v Standard Group Limited & 4 Others [2017] eKLR, the Court of Appeal addressed the question of defamation as follows: “ Speaking generally a defamatory statement can either be libel or slander. Words will be considered defamatory because they tend to bring the person named into hatred, contempt or ridicule or the words may tend to lower the person named in the estimation of right thinking members of society generally. The Standard of opinion is that of right-thinking persons generally. The words must be shown to have been construed or capable of being construed by the audience hearing them as defamatory and to simply abusive. The burden of proving the defamatory nature of words is upon the Plaintiff. He must demonstrate that a reasonable man would not have understood the words otherwise than being defamatory. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 8

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The law of defamation or more accurately, the law of libel and slander, is concerned with the protection of reputation: “A s general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbor. It supplies a temporal sanction…” Defamation protects a person’s reputation that is the estimation in which he is held by others; it does not protect a person’s opinion of himself nor his character. The law recognizes in every man false statement to his discredit and it affords redress against those who speak such defamatory falsehoods.” 35. Windeyer J. in Uren John Fair Fax & Sons Pty Ltd 117 CLC 115 at 115 addressed defamation as follows: “ Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or which tend to make them shun or avoid that person.’’ 36. The words in the impugned letter authored by the appellant and served upon the Deputy Registrar, Chief Justice and several other entities, if true will show the Respondent as corrupt, intended to subvert the cause of justice, was a criminal and was not faithful to the duty assigned to him. The allegations portrayed a person bereft of moral standing, a crook and a partisan official who is hell bent on derailing the cause of justice. In spite of a demand, which is readily admitted being issued, the Appellant, in a rather cavalier manner, treated the respondent as a mat upon which all dirt and frustrations including loss of the summons for revocation of grant will be deposited. 37. The Appellant ensured that the letter was widely circulated to various offices, including those likely to take action. While it may be argued that the complaint was merely misplaced, this would only hold if it had been addressed to the proper authorities. In this instance, however, the letter was sent to the Rules Committee, which had no mandate over the discipline of the Respondent. Moreover, the letter contained allegations that had not been part of the original complaint to the succession court, including serious claims such as forging signatures. 38. The allegations were investigated by the Deputy Registrars and found to be unfounded. These findings are contained at pages 17–21 of the Record of Appeal. Upon examining the defamatory words published by the Appellant, it is evident that they were calculated to disparage the Plaintiff’s character and reputation, lowering him in the estimation of right-thinking members of society, and exposing him to contempt both from the public and, importantly, from his employer. The Appellant, by conjecture, implied that the Respondent’s production of the documents placed him squarely within the realm of corrupt dealings. However, this was neither substantiated nor supported by the investigations, which in fact dismissed the allegations. 39. The statement further portrayed the Respondent as the individual responsible for the removal of crucial documents, yet the Appellant failed to prove, either in his letter or through the investigations, that the Respondent was the sole custodian of the file in HC Succession Cause No. 83 of 2006, or that he had exclusive access to the registry where the alleged tampering occurred. The tampering itself was not proved as there was no iota of evidence in that regard. The Appellant was using subterfuge and skullduggery to avoid paying for his sins. The court found the Appellant to have committed fraud ‘of a very highest order.’ He was thus a concierge of crime of fraud. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 9

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40. It is not in doubt that reputation of a person is a vital asset which should be jealously guarded. If such reputation is besmirched, the same can damage an individual. In the case of Phineas Nyaga Vs. Gitobu Imanyara [2013] eKLR, Odunga J held that: “ Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts that may lead to an inference of malice...Malice may also be inferred from the relations between the parties… the failure to inquire in the facts is a fact which inference of malice may be properly be drawn. Flowing from the foregoing, the act of the Appellant in posting the defamatory words to the Plaintiff’s workmates depicted nothing but malice and that the Appellant was reckless as he did not inquire into the truth or otherwise of the facts. I am therefore satisfied that the Respondent has proved on a balance of probability that the Appellant published the defamatory words which has injured his reputation of character. 41. In Wangeti Mwangi & Another v. J.P. Machira t.a Machira & Company Advocate [2012] eKLR in setting out additional guidelines the court stated as follows: “ In addition, the award should also be geared where circumstances permit to act as deterrence so as to safeguard and protect societal values of human dignity, decency, privacy, free press and other fundamental rights and freedoms, including rights of others and personal responsibility without which life might not be worth living. The category of considerations will no doubt change as our societal needs change from time to time. In this regard, we think that courts must strive to strike a proper balance between the competing needs in the special circumstances of each case. 42. The Court of Appeal in the case of Johnson Evans Gicheru vs. Andrew Morton & Another (2005) eKLR stated that in action of libel, the trial court in assessing damages is entitled to look at the whole conduct of the Appellant from the time libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action and in court during the trial. 43. The Appellant upon being issued with a Demand Notice, failed to render an apology and to take out of publication of the defamatory words. The Respondent was therefore entitled to approach the court for redress. In trial the Appellant stated that he has never given an apology. The testimonies of the witnesses of the Appellant herein are inconsequential as they neither validated the publication as a qualified privilege defense nor prop up the moot points of the Appellant in so far as substantiating and evidencing the removal of crucial documents was due to corruption on the part of the respondent herein. 44. The issue that was before me related to defamation, which the court has found that the lower court was correct in all aspects. The defence raised was bogus and offered no explanation for besmirching of the respondent’s character. 45. The court correctly awarded damages, though they were markedly low. However, there was no cross appeal on quantum. This then means that the court has to address the question of costs. The issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 10

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to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) 46. The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 47. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: “ (18) It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. 48. The appellant was unsuccessful. The appeal lacks merit and should not have been filed. Given the circumstances, the respondent is entitled to costs. A sum of Ksh. 85,000/= will suffice. 49. In the upshot, I make the following orders:a. The appeal lacks merit and is accordingly dismissed with costs of Ksh. 85,000/=. b. 30 days stay of execution on costs. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 18TH DAY OF SEPTEMBER, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE Represented by: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 11

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Pro se Appellant Pro se Respondent Court Assistant – Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12941/eng@2025-09-18 12

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