Godfrey Kirimi v Catherine Makena

That she encashed a cheque of Kshs. 74,800/= to pay Classic Millers increasing the figure from Kshs. 66,000/= to Kshs. 74,800/= 4. That she illegally sold society’s milk and replacing it with water that she caused it be mixed with the milk. The appellant averred that on 29/5/2014 she introduced the new manager Purity Karambu and that the respondent had submitted incomplete records. 5. The learned Magistrate heard the dispute and held that the respondent discharged the burden to proof that the appellant had defamed her on two different occasion before an audience of three hundred people by repeating the same defamatory words and awarded the appellant general damages of Kshs. 450,000/= together with the costs of the suit and interests. The appellant was dissatisfied with the Judgment and filed this appeal based on the following grounds on the memorandum of Appeal: 6. 1. The learned Trial Magistrate erred in law and fact in failing to find that there was no evidence that the respondents reputation had been ruined before right thinking members of the society. 2. The learned Trial Magistrate erred in law and fact in failing to find that the respondent’s reputation was not exposed to any hatred, contempt or ridicule as a result of the justifiable words uttered by the appellant. 3. The learned Trial Magistrate erred in law and fact in failing to find that the respondent did not suffer any injury to her reputation as she went on to secure another job opportunity notwithstanding the words spoken by the appellant. 4. The learned Trial Magistrate erred in law and fact in failing to appreciate and uphold the appellants defence on account that there was overwhelming evidence that the respondent had indeed participated in the illegalities complained of by the appellant. 5. The learned Trial Magistrate erred in law and facts in finding that the appellant’s witnesses were forum shopped, roped in and essentially coerced into testifying on behalf of he appellant yet no evidence was called to that effect. 6. The learned Trial Magistrate erred in awarding excessive general damages which are a totally erroneous estimate of he damages awardable to the respondent if at all. 7. The learned Trial Magistrate erred in law and fact in failing to consider and/or disregarding the appellant’s evidence on record. 8. The learned Trial Magistrate erred in law and in fact by failing to consider the appellant’s written submissions. 9. The Judgment is against the eight of evidence. The appellant desires that the Judgment of the learned Magistrate be set aside, the respondent’s suit be dismissed with costs and he be awarded costs of the appeal. The appeal was canvased by way of written submissions. Appellants Submissions 7. The appellant urged the court to consider four issues namely:Whether the statement by the appellant was defamatory.Whether the respondent proved her case on a balance of probabilities.Whether the appellant was entitled to an award of damages.Who should bear the costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19486/eng@2025-10-14 2

page 2 of 7

Whether the statement made by the appellant was defamatory 8. He relies on Halsbury’s Laws of England where it is stated that, “ In dealing whether or not a statement is defamatory, the court must first consider what meaning the words would convey to he ordinary man and where the words published a reasonable person to whom the publication was made would be likely to understand them in a defamatory sense.” He further relies on Joseph Njogu Kamunge -vs- Charles Muriuki Gachau (2016) eKLR where the court stated that: “ A statement is said to be defamatory when it has a tendancy to bring a person to hatred, ridicule or contempt or which causes him to be shunned or avoided or has a tendancy to injure him in his office, profession or calling.” He further relies on John Ward -vs- Standard Limited (2006) eKLR where the ingredients of defamation were stated to be: 9. 1. The statement must be defamatory. 2. The statement must refer to the plaintiff. 3. The statement must be published by the defendant. 4. The statement must be false. The appellant submits that the leaned Magistrate erred in finding that the statement was defamatory when the ingredients were not met. That the statement was supported by documents and was therefore a factual statement and not defamatory. That the words did not injure the respondent’s reputation. It is further submitted that no 3rd party was called to establish whether there was damage to her reputation, reliance placed on Patrick Nyaga & another -vs- Samitam Services (E.A) Limited (2021) eKLR. Whether the respondent proved her case on a balance of probabilities 10. It is submitted that there was overwhelming evidence that he respondent had indeed participated in the illegalities complained of but the court failed to consider the submissions there by violating the rights of the appellant under Article 50(1) of the Constitution. He relies on Standard Ltd -vs- Alfred Muncha Ndubi (2019) eKLR where it was held that the words complained of were not false and were therefore not defamatory. Whether the appellant was entitled to damages 11. It is submitted that the respondent failed to prove her case on a balance of probabilities and is therefore not entitled to an award of damages. Reliance on Peter Ngethe Ngari t/a P.N.N Funeral Services -vsStandard Group Limited & Another (2022) eKLR 12. Who should bear the costs The appellant urges the court to award him costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19486/eng@2025-10-14 3

page 3 of 7

Respondents Submissions 13. She relies on Joseph Njogu Kamunge -vs- Charles Muriuki Gachari (2016) eKLR and submits that refereeing to the respondent as a thief was defamatory. That the appellant did not set up a defence of justification during the trial and cannot raise it on appeal. He also relies on Hon Uhuru Muigai Kenyatta -vs- Baraza Ltd where it was stated that the defence of justification in defamation causes was supposed to establish true facts and the plaintiff had no burden to proof the defence raised. It is submitted that the appellant did not demonstrate to the court the steps he took to establish the truth of the allegation he was making. He relies on Reynolds -vs- times Newspaper 925 House of Lords where the guidelines for consideration while dealing with the cases of defamation were laid down on the evidence it is submitted that DW2, 3 & 4 were not credible and the court could not rely on their testimonies that the award was not excessive and it was based on comparable awards. The respondent submits that he adduced overwhelming evidence that the appellant had uttered defamatory words against her. He urges the court not to interfere with the award and dismiss the appeal. Analysis and Determination 14. 15. I have considered the pleadings, the evidence adduced before the learned magistrate as well as he Judgement. I have also considered the submissions. The issues for determination are: 1. Whether the words uttered by the appellant were defamatory. 2. Whether the respondent was entitled to damages This is a first appeal and the powers of this court are donated by Section 78 of the Civil Procedure Act which provides: “ (1) (2) 16. Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” The court has a duty to analyze the evidence and come up with its own independent finding. See Selle -vs- Associated Motor Boat C. Ltd. The applicable law to burden of proof is Section 107, 108 and 109 of the Evidence Act. The court of Appeal in Mumbi M’Nabea -vs- David M. Wachira (2016) eKLR while discussing the burden of proof in civil liability claims in our jurisdiction stated as follows: “ In our jurisdiction the standard of proof in civil liability claims is that of balance of probabilities. This means that the court will assess the oral documentary and real evidence advanced by each party and decide which case is more probable to put it in another way, on evidence which occurrence of the event was more likely to happen than not.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19486/eng@2025-10-14 4

page 4 of 7

Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya: “ Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those exists.” 17. The provision provides for the legal burden of proof. However, Section 109 of the same Act provides for the evidentially burden of proof and states as follows: “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provide by any law that the proof of that fact shall lie on any particular person.” See also Kabugi -vs- Kabinya & 3 Others (1987) KLR 347. In cases of defamation, burden of proof remains on the plaintiff throughout the trial. 18. In Gatley On Libel and Stander 6th Edition it is stated that: “ A man commits the tort of defamation when he publishes to a 3rd person words (or matter) containing an untrue imputation against another.” The court of Appeal has held that the law of defamation is concerned with protection of a person’s reputation see Muskari Kombo -vs- Royal Media Services Limited (2018) eKLR. 19. In Selina Patami & Another -vs- Dhiranji -vs- Patani (2019) eKLR the court of Appeal succinctly stated that the law of defamation is concerned with protection of a person’s reputation, that is, the estimation in which such persons are held by others. The court went further to spell out the ingredients of defamation by stating: “ In rehashing, we note the ingredients of defamation were summarized in the case of John Ward -vs- Standard Ltd HCCC 1062/2005 as follows: 20. a. The statement must be defamatory. b. The statement must refer to the plaintiff. c. The statement must be published by the defendant. d. The statement must false.” The plaintiff must therefore proof these ingredients on a balance of probabilities. In this case the respondent alleged that the appellant had called her a thief. The appellant did not deny that he had told members of the society that the respondent was a thief who had stolen Kshs. 250,000/=. He went on to state and list the items that the respondent had stolen. The respondent adduced evidence and called witnesses. The appellant had raised nine grounds of appeal but collapsed the grounds to four. These are: Whether the statement made by the plaintiff was defamatory 21. In determining whether the words are defamatory the court has to consider what meaning they would convey to an ordinary person and now a reasonable person is likely to understand them in the defamatory sense. A statement is said to be defamatory if it has a tendancy to bring the person against whom it is made to ridicule or contempt, shunned or eroded and to injure his repute in career, standing https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19486/eng@2025-10-14 5

page 5 of 7

in society, profession or calling. See Joseph Njogu Kamunge -vs- Charles Muriuki Gachari (Supra). The words stated must be defamatory, refer to the plaintiff, published by defendant and must be false. 22. There is no dispute that the appellant uttered the following words – “Caherine Makena (the respondent) has been sacked because she was a thief and I have employed another manager. She stole from the Society Kshs. 250,000/=” The learned Magistrate held that the respondent proved that the words complained of were uttered by the appellant and that the appellant himself admitted that he had uttered the words complained of in a meeting of Dairy members on 3/4/2014. The learned Magistrate found that although the appellant denied that he had uttered words that PW1 stole Kshs. 250,000/=, in the meeting of 3/4/2024 and 29/5/2014 he had stated in evidence that it was true that PW1 stole Kshs. 250,000/= from the Dairy. The learned magistrate held that the evidence by the respondent was well corroborated that the appellant uttered the words. That the members who were present on 29/5/2014 demanded that he appellant substantiates the allegation but he called off the meeting. The learned Magistrate held that the words uttered by the respondent communicated that PW1 was a thief and the words uttered were defamatory. 23. I find that the evidence on record support the finding by the learned magistrate that the appellant stated severally that the respondent is a thief and the finding cannot be faulted. The words were defamatory in that they alleged that the respondent was a thief who had been sacked and replaced by another person. The words were no doubt intended to demean the respondent and to lower her standing or reputation in the minds of right-thinking members of the public. Stealing is a crime and for a person to be adjudged a thief he or she must be so adjudged by a competent court of law. 24. The next issue which the court has to determine is, whether the respondent proved that her reputation was lowered. There is no doubt that referring to the respondent as a thief is defamatory. Defamation is actionable perse, that is to say that ingredients must be proved, that reputation was injured. There must be evidence by a 3rd party. 25. The words are defamatory where they allege without any substance that the person has done a shameful and dishonest act, which tend to lower the esteem of the person in the minds of right-thinking members of the society. The learned magistrate held there was no evidence that the respondent’s esteem was lowered exposed her to ridicule, contempt or caused her to be shunned or avoided but that every human being has a right to fame and reputation and once a person proves that his fame and his reputation has been injured the court will not hesitate to award a suitable remedy. 26. The record shows that he respondent called two witnesses who confirmed that the defamatory words were uttered. The appellant did not raise a defence of justification. The defence was a mere denial. The respondent did not tender any defence of justification or the truth of the allegations. The appellant having admitted the allegation that he called the appellant a thief he had an obligation to establish the truth of the fact which he never did. The claim remained as a defamatory statement that the respondent was a thief. Even after making the allegation, he would not give the appellant an opportunity to be heard, he just ended the meeting. 27. See Hon. Uhuru Muigai Kenyatta -vs- Baraza Limited where the court stated that: “ While taking defence of justification or qualified privilege in a defamation case, the defendant was required by law to establish the time facts and the plaintiff has no burden to prove the defence raised by the defendant.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19486/eng@2025-10-14 6

page 6 of 7

28. It is well settled law that the burden is on the defendant to prove the truth of the words in their ordinary and natural meaning. The appellant did not demonstrate the steps he took to establish the truth of the allegations. A person enjoys a presumption of innocence until proven guilty. In civil matters proof is on a balance of probabilities and the appellant was under a duty to prove the truth of the allegation failure to which the allegation will stand out as defamatory. See Reynolds -vs- Times Newspaper 925 the House of Lords where guidelines for consideration while dealing with matters defamation were laid down. Whether he defendant was entitled to an award of damages: 29. Damages for the tort of defamation are awarded where it is proved at the publication was defamatory and intended to lower the esteem of the plaintiff. The respondent was the Secretary Manager. The learned magistrate held that there was no proof that the respondent had stolen and the allegation by DW1 remained a matter of conjunctive. 30. Though he noted that there was no evidence that anybody believed in the defamatory words he nevertheless found that she was entitled to damages. The appellant lost her job as a result of the allegation. She filed the suit in the labour court and the court held that the dismissal was unfair and she was paid damages of Kshs. 295,000/= and costs. The respondent proved that she suffered loss and damage. She lost her job where she held the position of the manager, the highest position in the company and as submitted she is a University graduate and has a great stake on her reputation. In assessing damages for defamation, the court has to consider the circumstances of each case. Factors in this case which the court has to consider are that no apology was offered, the allegation were made in public where members of the public had gathered. The labour court held that she was treated unfairly. 31. I find that these factors called for an award of damages. The learned magistrate awarded general damages of Kshs. 450,000/=. The award of damages is an exercise of discretion by the trial court and the appellate court will not interfere with the exercise of discretion unless it shown that the learned magistrate considered something irrelevant or failed to considered something relevant, acted on wrong principles or gave an award that was inordinately high or low as to reflect an error or short of that the award was manifestly wrong. See Butt -vs- Khan. The respondent had submitted that she be awarded Kshs. 3,000,000/= as general damages. 32. The learned trial magistrate exercised discretion and awarded a much lower award. The authorities cited by the respondent show that general damages of Kshs. 2,000,000/= or 10,000,000/= have been awarded for defamation. I find that the damages awarded by the learned magistrate were not inordinately high or excessive. I would therefore have no reason to interfere with the damages awarded by the learned magistrate. Conclusion 33. For the reasons stated above based on the proceedings, Judgment and the submissions, I find that this appeal is without merits. I dismiss it with costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 14TH DAY OF OCTOBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19486/eng@2025-10-14 7

page 7 of 7