Royal Media Services Limited v Nehemiah Stonebic Misiani T/A Stone Bic High School & 1 other

c. The learned trial Magistrate erred in ignoring the evidence of the Kikuyu District Education Officer which was on record. d. The learned trial Magistrate erred in holding that the removal of the 2nd Respondent from the proceedings was not fatal to the 1st Respondent’s suit yet it was an uncontested fact that she was the one who uttered the alleged impugned words. e. The learned trial Magistrate erred in wholly ignoring the defences raised by the Appellant stating that they were not available to it despite the overwhelming evidence on record to the contrary. f. The learned trial Magistrate erred in holding that as a result of the impugned publication, the 1st Respondent underwent financial losses and yet there was no evidence whatsoever of the same before the lower court. g. The learned trial Magistrate erred in holding that the 1st Respondent proved his case on a balance of probabilities as required by law. h. The learned trial Magistrate ignored the fact that the Appellant had made the broadcast as a matter of public interest and thus erred when he wrongfully dismissed the defences proffered by the Appellant. i. That the trial court’s award of Ksh.7,300,000/- as damages was manifestly too excessive in the circumstances. j. The trial court’s award threatens to stifle freedom of expression and press freedom as guaranteed by the Constitution. 3. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyse and re-evaluate the evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified. 4. In Selle, Sir Clement De Lestang observed that: “ This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 5. In the matter before the lower court, the 1st Respondent sued the Appellant and the 2nd Respondent for general damages for defamation vide an amended plaint dated 16th April 2018. 6. The 1st Respondent pleaded that on the 3rd May, 2012, the 2nd Respondent falsely and maliciously uttered and the Appellant broadcast words concerning the 1st Respondent which words the 1st Respondent stated had the meaning that that he was a dishonest person who engaged in sexually harassing female students and who had failed to manage his schools properly by taking up several positions in the school and employing unqualified teachers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 2

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7. The 1st Respondent averred that as a result of the impugned words uttered by the 2nd Respondent and broadcast by the Appellant, he had been injured in his credit and reputation and further that he had been brought into public scandal, odium and contempt. The 1st Respondent further complained that his schools had been brought into disrepute as a result of which he suffered financial damage. 8. The 1st Respondent thus claimed general damages for defamation, aggravated, exemplary and punitive damages and costs of the suit. 9. The Appellant filed a statement of defence dated 27th May, 2013 in which it pleaded that if at all it broadcast the impugned words, then the same was done as a fair comment on a matter of public interest in good faith, without malice and not intended to injure the character of the 1st Respondent. The Appellant further pleaded that the broadcast of the words was not calculated to increase coverage of its radio with a view to making a profit. 10. In its defence, the Appellant further stated that any words which it broadcast were done in the exercise of media freedom guaranteed by Article 34(1) of the Constitution and its sole aim was to disseminate information to the public and that it was not driven by any malice. 11. The 2nd Respondent filed a statement of defence dated 16th October, 2017 in which she denied that she falsely and maliciously uttered and caused to be broadcast the impugned words. 12. The 2nd Respondent stated in her defence that she was the District Education Officer for Kikuyu charged with conducting investigations and making recommendations of closure of schools that violated the set laws and regulations governing quality education. 13. The 2nd Respondent averred that the 1st Respondent’s schools were closed as a result of the 1st Respondent’s failure to meet the quality standards of the Ministry of Education and further that she did not have any control over what the Appellant chose to broadcast and thus she could not be held liable for the same. 14. Vide a consent recorded on 8th August, 2019 between the 1st Respondent and the 2nd Respondent, the 1st Respondent withdrew the suit against the 2nd Respondent with no order as to costs. However, the Appellant, vide an application dated 25th October, 2019 sought leave to join the 2nd Respondent as a third party, which leave was granted and the notice dated 18th November, 2011 was filed as a result. 15. The 1st Respondent testified and told the trial court that on 3rd May, 2012, the 2nd Respondent falsely and maliciously uttered and the Appellant broadcast through its Inooro FM radio station the following words concerning the 1st Respondent (as interpreted from Kikuyu to English language): “ The Kikuyu Education Board has closed down four private schools which have been found not adhering to the management policies and also due to the head teacher being suspected to be engaging involve affairs with girl students. When issuing the order to close the schools, which are: Stonebic High, Stonebic Girls, Stonebic Academy and St. Anne Sigona, the chairperson of the Board of Education, who is the D. C. for Kikuyu, Fredrick Kitema, has said that a big number of students in those schools have associated/involved the owner with acts of harassing them sexually and also said that the level of cleanliness has deteriorate in a big way. “What we did is eeh…. Of course to ascertain sexual harassment allegations is normally a very sensitive issue. We don’t normally encourage the students to, you know, write their names but we have around ten reports from girls. We ask them about the Principal, about the learning environment and what also came out is that there were aspects of sexual https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 3

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harassment, you know, coming from the girls who were in that particular institution. So we have already digested that report, as a D.E.B, and the recommendations are very clear, that, that institution be closed”. And the head of Education, that side of Kikuyu, Elizabeth Karani, has said that the investigations they have previously conducted have revealed without doubt that the head teacher of that school who is also the owner and a male, has been ambushing the students in their dormitories. “ According to the investigations we have done, the children complained a lot, saying that he meets them in the dormitory even when they are naked and they are female students. Sometimes he could talk nicely to them, playfully indicating that he wants something. We do not know to what extent he may have reached but the female students do not like being playful with male adults especially age mates of their father.” Further, the Education Officer has advised parents to avoid taking their children to schools which lack responsible behaviour. “ For this reason as we look at this matter se see there was discretion lacking in his management. He is the Principal, the Director and Teacher. Then he has employed four other unqualified teachers. Due to this, the parents should listen to their child’s story, whether it is coming from this child and the other and decipher whether the story is true. The parent should carefully listen to their child’s story and be the one to protect the child from any danger.” 16. The first witness that the 1st Respondent called was George Okoth Abworo, who produced as PEx1 a CD disc in which the impugned words were electronically recorded. 17. The 1st Respondent called Grace Njeri, as his second witness. The witness produced a transcription of the impugned words as captured in the clip. 18. The 1st Respondent’s third witness was Gideon Nyangechi, whose evidence was to the effect that following the news bulletin on Inooro FM where the impugned words were uttered, he transferred his daughter from the 1st Respondent’s school fearing that she could be a victim of sexual abuse/ harassment. 19. The 1st Respondent called Jotham Githua as his fourth witness. The witness told the trial court that himself and others shunned the 1st Respondent on learning from the broadcast on Inooro FM that the 1st Respondent had been sexually harassing students in his school. 20. In his testimony before the trial court, the 1st Respondent stated that he was the proprietor of Stonebic High School. He stated that he heard the words complained of on Inooro FM radio station that was owned by the Appellant. He stated that a report had been issued by the District Education Board in which a recommendation was made that his school be closed. He stated that the impugned words were uttered by the 2nd Respondent. 21. The Appellant called Njenga Njehia, its legal officer as a witness. The witnesstold the court that the words that the 1st Respondent complained of were uttered by the 2nd Respondent when she was interviewed on Inooro FM radio station on 3rd May, 2012. The witness produced as an exhibit a report on investigations conducted by the District Education Board. 22. The Third Party did not call any witness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 4

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23. After considering the testimonies of the witnesses presented by both parties, the learned trial Magistrate, in his determination rendered on 17th March, 2022 found that the 1st Respondent had proved the elements of defamation as against Appellant. The trial magistrate also found that as the 2nd Respondent, who was a Third Party, filed a defence but failed to call any witness in support of her case, could not escape liability for having uttered the impugned words. 24. In his judgement, the learned trial Magistrate went on to find that the defence of fair comment or privilege relied on by the Appellant was not available to it as it had been proved by the 1st Respondent that the impugned words had placed him in disrepute and financial loss. The trial court went on to award the 1st Respondent Ksh.7,000,000/- as general damages and Ksh.300,000/- as aggravated damages. 25. Having re-analyzed the trial record and upon considering the grounds of appeal set out above and the parties’ respective submissions, I deduce the issues for determination in the present appeal to be as follows: a. Whether the withdrawal of the suit against the 2nd Respondent by the 1st Respondent was fatal to the Appellant’s case. b. Whether the 1st Respondent proved his claim for defamation against the Appellant. c. Whether the award for general and aggravated damages were excessive. 26. The Appellant took the position that the withdrawal of the suit against the 2nd Respondent by the 1st Respondent was fatal to the 1st Respondent’s case as it was the 2nd Respondent who uttered the alleged impugned words. 27. The suit against the 2nd Respondent was withdrawn by the 1st Respondent by the consent of the two parties on 8th August, 2019. A discussion on the law relating to withdrawal of suits is apt in addressing the issue raised by the Appellant on the effect of the withdrawal. 28. The law and procedure governing withdrawal or discontinuance of suits, is to be found under Order 25 of the Civil Procedure Rules. The provision is headed “Withdrawal, Discontinuance and Adjustment of Suits”. 29. Rule 1 of Order 25 provides discontinuance of the whole or any part of the claim where a suit has not been set down for hearing. The procedure thereto has been explained elaborately by the Court of Appeal in the case of Beijing Industrial Designing & Research Institute v Lagoon Development Ltd [2015] eKLR. 30. In that case, the Court of Appeal affirmed that, as a general principle, a Plaintiff has a right to withdraw or discontinue a suit against a Defendant. The court emphasized that this right is structured and regulated under Order 25 of the Civil Procedure Rules. 31. The Court explained that the Rules contemplate three distinct situations: first, before a suit has been set down for hearing, where the Plaintiff has an absolute right to withdraw upon giving notice; second, after it has been set down, where withdrawal may occur only with the written consent of all parties; and third, where the suit has been set down but consent is lacking, in which case the Plaintiff must seek leave of the court, and such leave is granted on just and appropriate terms, not as a mere formality. 32. The Court therefore rejected any interpretation that withdrawal, once a matter is set down for hearing, can occur unconditionally or unilaterally. The Court held that the right to withdraw is not unfettered, particularly where its exercise would amount to an abuse of the court process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 5

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33. In the instant case, the court granted the 1st Respondent leave, through the consent that the court adopted, to withdraw his claim against the 2nd Respondent. The legal effect of the consent to withdraw the suit against the 2nd Respondent was therefore to discontinue the 1st Respondent’s claim as against the 2nd Respondent. 34. That said, it is instructive from the record of the lower court that the Appellant successfully sought leave to join the 2nd Respondent as a Third Party and issued a third-party notice to that end. 35. Order 1 of the Civil Procedure Act deals with parties to suits. Order 1 Rule 15(1) specifically deals with issuance of third-party notice. In the case of Kenya Commercial Bank v Suntra Investment Bank Ltd (2015) eKLR, the Court held that; “ In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules.” 36. Accordingly, having brought back the 2nd Respondent into the proceedings before the trial court as a Third Party, the learned trial Magistrate was well within the law to determine the issue of liability between the Appellant and the 2nd Respondent. 37. But then, the position that the Appellant proffered was that the withdrawal of the suit against the 2nd Respondent resulted in a situation where there was non-joinder of a relevant and necessary party (as a Defendant) to the defamation proceedings. 38. The suit as originally filed before the trial court named both the Appellant and the 2nd Respondent as defendants. However, as I have stated before, the 1st Respondent withdrew the claim against the 2nd Respondent, leaving the Appellant as the sole Defendant. The Appellant thereafter issued a third-party notice against the 2nd Respondent, asserting that if it were found liable, it was entitled to contribution or indemnity from the latter as the originator of the impugned words. 39. On appeal, the Appellant now raises, in my understanding, a multi-layered, contention: that the withdrawal of the suit against the 2nd Respondent fatally undermined the cause of action against it, because the person alleged to have uttered the words was no longer a Defendant. It argues that the trial court could not properly assess liability in the absence of the primary speaker and that the joinder of the 2nd Respondent as a third party did not cure this perceived deficiency, as third-party issues arise only after the Plaintiff proves liability against the Defendant. 40. In the Appellant’s view, the withdrawal rendered the suit legally insufficient and the claim ought to have failed at the threshold. 41. I have carefully considered the record and the submissions of counsel on this issue. The question before me is narrow, but of significance in the law of defamation and civil procedure: does a withdrawal of the suit against the alleged speaker extinguish the Plaintiff’s claim against any other party that may have published the defamatory words? 42. With profound respect, the Appellant’s argument proceeds from a misunderstanding of the nature of liability in defamation. The law recognises multiple independent tortfeasors in the chain of publication. A person who utters defamatory words commits the tort by speaking them; but the one https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 6

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who prints, distributes or broadcasts those words likewise commits the tort through publication. Their liabilities may be joint, several or both, but they are not mutually contingent. The presence or absence of one alleged tortfeasor does not immunize another whose own acts constitute publication. 43. Thus, the 1st Respondent was entitled to pursue the Appellant alone if he believed that the Appellant’s conduct, namely, the act of broadcasting the impugned material, was itself actionable. 44. Plaintiffs are not compelled to sue all persons connected with a tort. As long as a pleaded and provable cause of action exists against the party who remains in the suit, the withdrawal of claims against others does not operate as a bar. I therefore reject the proposition that the claim against the Appellant ceased to be maintainable by virtue of the withdrawal. 45. After the withdrawal, the Appellant invoked Order 1 Rule 15 of the Civil Procedure Rules and issued a third-party notice against the 2nd Respondent. This was an appropriate procedural step. Third-party proceedings exist precisely for situations where a Defendant contends that another person, whether previously a Defendant or not, bears responsibility for the Plaintiff’s loss. It allows the Defendant to pursue contribution or indemnity and ensures that the Defendant is not left without a remedy where it believes blame lies elsewhere. 46. The Appellant contends that because issues of contribution between a Defendant and a Third Party arise only after the Plaintiff establishes liability, the joinder of the 2nd Respondent as a Third Party could not remedy what it considers a foundational defect in the action. That argument misunderstands the sequential nature of the process. The fact that third-party liability is contingent does not render the Plaintiff’s primary claim invalid or incomplete; it merely sets the procedural order in which the court determines disputes. 47. The trial court therefore correctly first considered whether the Appellant had published the defamatory material and whether such publication was actionable and that only upon such finding would contribution arise. 48. I am satisfied that the trial court properly appreciated the law and correctly found that the claim against the Appellant remained intact notwithstanding the withdrawal against the 2nd Respondent. The Appellant’s liability, if any, was grounded in its own publication of the impugned material, not in the procedural posture of the co-defendant. 49. Third-party proceedings afforded the Appellant the very protections that the Appellant now claims were denied. The argument that the suit was defective for want of the originator of the words is without legal foundation. 50. This limb of the appeal thus fails. 51. Turning to the main stratum of the suit, the Appellant pleaded and submitted that the 1st Respondent failed to prove his case on defamation on a balance of probabilities as required by law. 52. Black Law’s Dictionary 8th Edition defines defamation as “the act of harming the reputation of another by making a false statement to a third person.” The Court of Appeal in SMW v ZWM [2015] eKLR, (Karanja, Mwilu & Azangalala JJ.A) defined a defamatory statement as follows:“ 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 7

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53. The elements of defamation were outlined by the Court of Appeal in the cases of Selina Patani & another v Dhiranji v Patani [2019] eKLR and Raphael Lukale v Elizabeth Mayabi & another [2018] eKLR 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. 54. It is not contested in this case that the impugned words were uttered by the 2nd Respondent and broadcast by the Appellant and that the said words referred to the 1st Respondent who was the director or proprietor of Stonebic High School. 55. The 1st Respondent took the position that the impugned words implied that he was a dishonest person who engaged in sexually harassing female students and who had failed to manage his schools properly by taking up many positions in the school and employing unqualified teachers. 56. Notably, the 2nd Respondent who was the originator of the impugned words, and who was a Third Party in the proceedings before the trial court did not call any witness. 57. On its part, the Appellant advanced the defence that the broadcast it made was as a fair comment on a matter of public interest and in good faith, without malice and with no intention to injure the character or reputation of the 1st Respondent. 58. Fair comment is a defence in defamation that protects statements of opinion on matters of public interest, provided they are based on facts that are true, privileged or otherwise apparent to the audience. It applies only where the words complained of can be recognized as comments rather than assertions of fact and where the reader is given - or already knows - the factual basis on which the opinion is formed. 59. The law accepts that opinions may be exaggerated, prejudiced or unreasonable; but what matters is that they are rooted in disclosed or known facts and address a subject that legitimately concerns the public, such as the conduct of public affairs, public figures, governmental affairs, artistic works, business practices or other issues affecting the community. 60. The defence succeeds only if the opinion was honestly held. It is defeated by malice, which arises where the Defendant did not genuinely hold the opinion or used the comment as a vehicle for an improper motive, such as personal spite or a desire to harm the Plaintiff unrelated to the public interest. 61. In essence, fair comment protects the robust expression of opinion on matters that society has an interest in debating, while ensuring that such freedom is not abused for malicious or dishonest attacks. 62. In the circumstances of this case, I do not think that the defence of fair comment was available to the Appellant, because fair comment (honest opinion) applies only to opinions, not to statements of fact. Reporting that the owner of a school was sexually harassing students, was incompetent or had hired incompetent teachers, on the basis of the report by the District Education Board and relied on by the 2nd Respondent was a factual allegation and not an evaluative judgment by the Appellant. The Appellant would in such situation be repeating the 2nd Respondent’s factual assertions, not expressing its own opinion based on disclosed facts. Since the defence of fair comment requires the impugned statement to be recognisable as comment rather than fact, the same was not available to the Appellant as falling into the category of protected opinion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 8

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63. The Appellant also raised the defence of qualified privilege before the trial court. Qualified privilege is a defence in defamation that protects statements made on occasions where the speaker has a legal, moral or social duty or interest in communicating the information and the recipient has a corresponding duty or interest in receiving it. The focus is on the occasion of the communication rather than the truth of the statement itself. 64. If the circumstances justify the sharing of information - such as reporting misconduct to an authority, communicating risks to those affected or accurately relaying information from official sources - the law recognises that people should be able to speak freely without fear of liability, even if the information later turns out to be false. 65. However, the privilege is qualified, meaning it can be defeated if the claimant proves malice. Malice arises where the Defendant acts with a dominant improper motive, such as spite, personal hostility or a purpose unrelated to the duty or interest that created the privileged occasion. 66. If malice is shown, the protection falls away regardless of the underlying occasion. In essence, qualified privilege balances the need for open communication in certain relationships and contexts with the requirement that such communications not be abused for malicious ends. 67. Qualified privilege protects communications made where the publisher has a duty or interest in passing on information and the public has a corresponding interest in receiving it. The evidence that was presented before the trial court was that the 2nd Respondent, while being interviewed, gave information that arose from investigations into matters affecting public safety, children’s welfare and the operation of schools. The information was contained in the report by the District Education Board – a government entity. The Appellant, being a media house, generally had a recognized social and moral duty to report that information accurately. The public, in turn, had a clear and legitimate interest in being informed about the conduct of school operators and the findings of the investigations. 68. My persuasion, in the circumstances, is that the publication made by the Appellant was fair, accurate and without malice. The allegations originated from investigations by education officials. The Appellant did not assert the accusations against the 1st Respondent as independently verified facts. As long as the report was a good-faith, accurate account of what the the education officials had officially stated, the privileged occasion arose from the Appellant’s role (as a media house) in disseminating information from an authoritative source about a matter of public concern. 69. The protection could only be lost only if the 1st Respondent proved malice, such as if the media house intentionally distorted the findings of investigations or used the report as a pretext to attack the 1st Respondent for unrelated reasons. Absent such improper motive, the Appellant’s reliance on an official governmental information about a serious public-interest matter was precisely the type of communication that qualified privilege was designed to protect. 70. My view is therefore that the Appellant acted within the scope of the privileged occasion and a claim for defamation against it could not succeed, in the circumstances. 71. The Appellant also proffered the defence that it was exercising its media freedom. Media freedom under Article 34(1) of the Constitution is an important interpretative principle, but it is not a standalone, additional defence to a defamation claim once another defence, such as qualified privilege has succeeded. 72. Article 34 guarantees the freedom and independence of the media, but it does not grant the media immunity from defamation suits. Instead, courts use Article 34 - as well as the right to dignity under Article 28 - to balance the competing constitutional values when determining whether a publication https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 9

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was lawful and whether a common-law defence such as qualified privilege or fair comment should apply. 73. As I have held that the defence of qualified privilege was successfully established by the Appellant, the defence itself already encompassed the argument that the publication was made in the public interest, without malice and on an occasion where the Appellant, as a media house, had a duty or interest to inform the public. Article 34(1) therefore supports the Appellant’s position that it acted in good faith and within its constitutional mandate. Constitutional media freedom is therefore a contextual justification as to why the occasion was privileged. 74. Taking all the above into consideration, I am not convinced that by broadcasting the 2nd Respondent’s impugned words, the Appellant defamed the 1st Respondent. The learned trial Magistrate fell into error in holding the Appellant liable. 75. Having reached the decision that the Appellant was not liable in tort, it means that the issue of liability between the Appellant and the 2nd Respondent did not present itself for determination. As liability could not attach against the Appellant, and in turn the 2nd Respondent, it would be preposterous to proceed to determine the appeal on the issue of quantum. 76. The upshot of all the above is that the appeal is hereby allowed with the result that I proceed to set aside the judgement of the trial court delivered on the 17th March, 2022 in its entirety and substitute the same with an order dismissing the 1st Respondent’s suit with costs. 77. Section 27 of the Civil Procedure Act dictates that the 1st Respondent bears the Appellant’s costs of the appeal. 78. This file is hereby closed to the appellant. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 3RD DAY OF APRIL, 2025. JOE M. OMIDO JUDGE For Appellant: Mr. Munyori. For 1St Respondent: Present In Person. For 2Nd Respondent: Mr. Ngumbi. Court Assistant: Mr. Juma. 1st Respondent: I pray for 14 days to appeal. Court: Right of appeal 14 days. JOE M. OMIDO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16782/eng@2025-04-03 10

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