Suzanne Gatune Mbaka & 1 other v Komal Jeje & 2 others

Pawansut Management Ltd” 2. The Plaintiffs averred that the message alongside their photograph either in its natural and ordinary meaning, or by imputations and innuendoes, the Defendants meant and were understood to mean that the plaintiffs are reckless, irresponsible and careless, that they are unethical and unscrupulous, that they are high handed and insensitive, that they are self-conceited, that they carry on activities in complete and utter disregard of the rules of the premises, and that they have no regard whatsoever to the rights and interests of other occupants of the premises. 3. The Plaintiffs stated that the Defendants falsely and maliciously wrote, published and distributed or caused to be written, published and distributed the said photograph together with the text while knowing fully well that the allegations of and concerning the Plaintiffs were untrue. That before the publication and distribution of the said libel, the Plaintiffs as owners of the said apartments and as people of very substantial standing enjoyed extremely high esteem and respect from the other coowners in the premises. 4. The Plaintiffs claimed as against the Defendants for damages and the footing of aggravated or exemplary damages, an injunction restraining the Defendants by themselves, their servants or agents or otherwise howsoever from further circulating or causing to be circulated the photograph containing words defamatory of the Plaintiffs, costs of the suit, interest on the damages and costs, and any such further or other relief that this court may find fit and just to grant. 5. The Defendants were served, they entered appearance and filed their Statement of Defence dated 14th August 2023 where they generally denied averments in the Plaint and prayed that the suit is dismissed with costs. 6. The matter proceeded to hearing. The 1st Plaintiff Suzanne Gatune Mbaka, PW1, testified that she knew the 1st and 2nd Defendants who were employees of the 3rd Defendant. She said that she lived in the apartment and was the owner of apartment B8. She said that she recorded her witness statement dated 3rd July 2023 and wished to have it adopted as evidence. She also wished to produce documents as per the Plaintiff’s list of documents dated 3rd July 2023 as exhibits 1 -4. 7. On cross examination, PW1 said that she had lived in the apartment since 2016 and was part of the management committee from 2019 to 2021 as the secretary. She said that it was important to safeguard resources of the apartment and that there was no harm in carrying water in tightly closed jerrycans. She said that there were CCTV cameras in common areas and that she had never lodged any complaints in respect to the cameras. 8. She said that in exhibit 4, she was one of the people in the photo and she confirmed that there were water jerrycan in the lift. She said that her name was not appearing in the notice and she was not being accused of carrying the jerrycans. That a photo was posted in the WhatsApp group and a notice given. That the implication of the communication was that she was impossible which painted a negative image of her on social media. PW1 said that she had just alighted from her car and got into the lift, and that she had not suffered any financial damage. 9. PW2, Lydia Adongo Osewe, the 2nd Plaintiff said that she was a tenant at Pawansut Apartment and lived in apartment B7. She said that she knew the 1st, 2nd and 3rd Defendants and that the 1st and 2nd Defendants were employees of the 3rd Defendant. She said that she recorded her statement dated 3rd July 2023 and wished to have it adopted as evidence. That she also wished to rely on the Plaintiff’s exhibits 1 – 4. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4257/eng@2026-02-26 2

page 2 of 7

10. PW2 said that she received a photo from a tenant, which photo had been posted in the owners/tenants WhatsApp group but she was not a member of the group. She said that she was in the photo together with her neighbor and that the jerrycans belonged to her. She said the notice was about the jerrycans and that it was the 2nd Defendant who took the photos. That it was insinuated she was causing damage to the lift and that her neighbor in the photo was holding hospital documents indicating that she was sick. PW2 said that she asked for an apology but it never happened. 11. On cross examination, PW2 said that she would not suffer any loss if someone saw her around the hospital. She said that she could not tell what her neighbor was suffering from and that saying a person was carrying hospital documents did not mean that they were sick. PW2 said the jerrycans contained water, they were tightly shut and that the water could spoil the lift. She said that the notice was sent after the photo and that the jerrycans were captioned in the photo. She said that she could clearly see their faces but she had not suffered direct financial loss as a result of the photo being posted. 12. Defence hearing was conducted on 4th February 2025 where the Defendants tendered their evidence in court. DW1, Jadauji Shivji Vagjiani, said that he recorded his statement dated 16th October 2023 which he wished to have it adopted as his evidence in chief. He also said that he filed his list of documents dated 16th October 2023 which were produced as exhibits 1 -7. 13. On cross examination by Obonyo Advocate, DW1 stated that he knew PW1 and PW2 who were both residents at Pawansut Apartment and that there was a WhatsApp group for the residents with 300 members and which was managed by Pawansut Management Co. Ltd. That DW1 was in management and was also a shareholder. 14. DW1 said that photos of the Plaintiff were in the WhatsApp group and that the purpose of the group was for giving information whether good or bad. He said that they did not ask for permission to post the photo and that the photo showed Suzanne holding an envelope within Aga Khan Hospital while Lydia was slightly bending. He said that he knew Lydia as Suzanne’s employee and that he was present when Suzanne was holding the lift door so that Lydia could get in with water jerrycans. He said that he did not enter the lift and waited for another one. 15. He said that there was nothing pertaining the photo as the lift had been damaged by water and they had to change the wiring. He said that he received a demand letter but did not offer Suzanne an apology. DW1 said that Suzanne had an envelope and a small water bottle, and that water bottles were allowed. That the small water bottle was not leaking but the lift had water on the floor and that was why they took the photo. That it was not indicated when the photo was taken and that the photo and the message were sent together. 16. The defence case was marked as closed and court gave directions for parties to file their submissions. On 8th May 2025, the court confirmed that parties had filed their submission. 17. The Plaintiffs in their submissions dated 17th February 2025 argued that for one to state that he/ she has been defamed, the situation must have ingredients that constitute defamation. That the case of Musikari Kombo v Royal Media Services Limited (2018) eKLR listed the ingredient to include the existence of a defamatory statement, the defendant published or caused the publication of the defamatory statement, and that the publication refers to the claimant. 18. The Plaintiffs submitted on whether the publication/circulation made on the 1st of November 2023 was capable of being construed as defamatory in its natural and ordinary meaning or by innuendo, that it was the Plaintiffs’ case that the circulation was malicious and defamatory of the Plaintiffs with the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4257/eng@2026-02-26 3

page 3 of 7

sole intent to malign their reputation or to injure their character and expose them to ridicule, scandal, odium or contempt. 19. The Plaintiffs submitted that in a nutshell, they were accused of being responsible for damaging the lifts of the premises, which accusations were not true since the action by the Plaintiffs to carry water was occasioned by the Defendants’ neglect to provide essential services to the residents. The Plaintiffs also cited the Court of Appeal decision in Wycliffe A. Swanya v Toyota East Africa Ltd & another, Civil Appeal No. 70 of 2008 (2009) eKLR on what constitutes defamation. That all the ingredients that constitute defamation have clearly been presented herein to demonstrate that the Defendants defamed the Plaintiffs. 20. On whether the defamatory statement was circulated by the Defendants, the Plaintiffs stated that it was not disputed that the defamatory statement accompanied by a photograph of the Plaintiffs was circulated by the Defendants. That DW1 confirmed to court that indeed the same was circulated in the Pawansut residents’ WhatsApp group with about 57 participants. 21. On whether the publication was malicious and whether the Defendants took the defence of justification, the Plaintiffs argued that it was the Defendants’ case that the Plaintiffs were being careless, reckless and deliberately intended to destroy the lifts, which facts were not true since it was the Defendant’s negligence and/or inaction to supply water to the Plaintiffs that caused them to seek for water from elsewhere. 22. The Plaintiffs stated that a publication of such magnitude linking the Plaintiffs to grave and serious acts required strict verification of the facts as was held in Phineas Nyagah v Gitobu Imanyara, Civil Suit No. 697 of 2009 (2013) eKLR. That the alleged recklessness and/carelessness relied on by the Defendants was not proved and that this court is therefore invited to find that the publication was actuated by malice. 23. The Plaintiffs submitted that an award of damages in defamation is discretionary and a successful litigant in a defamation action is entitled to recover as it was held in John v MGN Ltd (1996) 2 All ER 35 at p 47. The Plaintiffs submitted on damages awardable that the Plaintiffs ought to be granted aggravated and/or exemplary damages and that Kshs. 11,000,000 for general damages and aggravated damages will compensate the Plaintiffs adequately. The Plaintiffs also prayed for costs. 24. The Defendants in their submissions dated 14th April 2025 on whether the prayers by the Plaintiff were tenable argued that the photos and the caption were not defamatory. The Defendants relied on the definition of defamation in the Blacks Law Dictionary and urged the court to find that the words complained of were not capable of a defamatory meaning to a reasonable person. 25. That the Plaintiff’s attempt to insert defamatory meaning could be seen through examination in chief evidence alleging that through the photos, it was revealed that one of the Plaintiffs had visited the hospital while the other tried to push a narrative of sexual innuendos which from the photographs no such focus was made. The Defendants relied on the case of Rono v Equip Agencies Limited (Civil Case 510 of 2013) [2024] KEHC 11172 (KLR) (Civ) (25 September 2024) (Judgment) and urged the court to find that the notice was not defamatory but intended to caution residents against use of jerrycans in the lift. 26. The Defendants urged the court to find that the Plaintiffs herein never led any evidence of actual damages as a result of the statements including reputational harm or financial loss, and that the damages of Kshs. 11,000,000 were greatly exaggerated. 27. The Defendants submitted that this court ought to disregard all averments on infringement of privacy. That Section 5 of the Data Protection Act 2019 has established office of the Data Protection https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4257/eng@2026-02-26 4

page 4 of 7

Commissioner who is tasked under Section 8 of the Act to investigate all complaints in regards to the Act which provides for right to privacy under Article 31 (c) and (d) of the Constitution. The Defendants relied on the case of Mwanzia v Rhodes (Constitutional Petition E115 of 2022) [2023] KEHC 2688 (KLR) (Constitutional and Human Rights) (31 March 2023) (Judgment). The Defendants prayed to be awarded costs. Analysis 28. 29. This court has considered pleadings, evidence on record and submissions. The issues for determination are: a. Whether the Plaintiffs proved their case to the required standards b. Whether the Plaintiffs are entitled to an award of damages c. What orders on costs should issue On whether the Plaintiffs proved their case to the required standard, the burden lies with the Plaintiff to prove their case on a balance of probability as set out in Section 107 and 109 of the Evidence Act as follows: Section 107 1. 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 facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Section 109 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 provided by any law that the proof of that fact shall lie on any particular person 30. Elements of defamation were set out in the case of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] KEHC 5119 (KLR) as follows: “ The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right minded persons in the society or they must tend to cause the plaintiff to be shunned or avoided by other persons. In other words, the words complained of must be shown to have injured the reputation, character or dignity of the plaintiff. Abusive words may not be defamatory per se. The words must be shown to have been construed by the audience as defamatory and not simply abusive. The burden of proving the above is upon the plaintiff to demonstrate that a reasonable man would not have understood the words otherwise than being defamatory. Further, the words must be malicious. Malicious here does not necessarily mean spite or ill will but there must be evidence of malice and lack of justifiable cause to utter the words complained of. Evidence showing the defendant knew the words complained of were false or did not care to verify can be evidence of malice. The defamatory words must be shown to have been published by the defendant.” 31. For a suit of defamation to succeed, the Plaintiffs are required to establish the following; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4257/eng@2026-02-26 5

page 5 of 7

32. a. that the statement was defamatory, b. that the statement referred to the Plaintiffs, c. that the statements were communicated to third parties other than the Plaintiffs, d. and that the statements were false and published maliciously. The court in Miguna Miguna v Standard Group Limited & 4 others (2017) eKLR had the following to say on what a defamatory statement is: “ 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 rightthinking 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 not simply abusive. The burden of proving the defamatory nature of the words is upon the plaintiff. He must demonstrate that a reasonable man would not have understood the words otherwise than being defamatory. See Gatley on Libel and Slander (8th edition para. 31).” 33. It is not in dispute that the Defendants took photographs of the Plaintiffs with accompanying words which were published in the Pawansut residents WhatsApp group with about 57 participants. It is also not disputed that the words complained of referred to the Plaintiffs. What is disputed is whether the words were defamatory. 34. The Plaintiffs stated that the message alongside the photograph in their natural or ordinary meaning meant and were understood to mean that the Plaintiffs were reckless, irresponsible and careless, unethical and unscrupulous, high-handed and insensitive, self-conceited, carry on activities in complete and utter disregard of the premises rules, and have no regard whatsoever to the rights and interests of other occupants of the premises. 35. That the allegations concerning the Plaintiffs were untrue and that before the publication and distribution of the libel, the Plaintiffs as owners of the apartments and people of substantial standing enjoyed extremely high esteem and respect from other co-owners in the premises. 36. The Defendants maintained that the words complained of were not capable of defamatory meaning to a reasonable person, and that the words intended to caution residents against the use of jerrycans in the lift. The Defendants urged the court to find that the Plaintiffs never led any evidence of actual damage including reputational harm or financial loss. 37. According to the evidence of the Defendants on the one hand, the lift had been damaged by water and they had to change the wiring. The Plaintiffs on the other hand submitted that they were forced to carry water because of the Defendants’ neglect to provide essential services to the residents which caused them to look for water elsewhere. 38. After carefully considering the evidence presented before this court, I am of the view that the words do not in any way amount to defamation. The Plaintiffs have also not demonstrated how the words injured their character and/or reputation. The Plaintiffs have therefore failed to prove their case to the required standard. The suit therefore has got no merits. 39. As for costs, considering the relationship between the parties, each party to bear its own costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4257/eng@2026-02-26 6

page 6 of 7

Determination 40. In the circumstance I make the following orders; a. The suit lacks merits and is hereby dismissed. b. Each part to bear its own costs It is so ordered. DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 26TH DAY OF FEBRUARY, 2026 ……………………….. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of; Mr. Oyas Advocate for the Plaintiffs N/A by the Defendants Ms. Salwa Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4257/eng@2026-02-26 7

page 7 of 7