Mungatana v Standard Limited (Civil Suit 1318 of 2005) [2024] KEHC 15574 (KLR) (Civ) (5 December 2024) (Judgment)
Neutral citation:
[2024] KEHC 15574 (KLR)
Republic of Kenya
Civil Suit 1318 of 2005
CW Meoli, J
December 5, 2024
Between
Hon Danson Mungatana
Plaintiff
and
The Standard Limited
Defendant
Judgment
1.On 02.11.2005 Hon. Danson B. Mungatana, (hereafter the Plaintiff) filed this suit which is founded on the tort of defamation, against The Standard Limited (hereafter the Defendant). The Plaintiff seeks inter alia general damages for libel, exemplary damages, punitive and aggravated damages, interest and costs of the suit.
2.The Plaintiff averred that at the time of filing suit he was the Member of Parliament (MP) for Garsen Constituency, the Assistant Minister Land and Housing, an advocate of the High Court of Kenya and the founding member of a political pressure group known as the Third Progressive Force (TPF). That between 20.05.2005 and 18.08.2005 the Defendant published statements and words in the “Palaver” Column of “The Standard” newspaper, that were defamatory of the Plaintiff. It was further averred that the scandalous, scurrilous and malicious allegations contained in the said publication by the Defendant against him were factually wrong and a gross misrepresentation of the truth, had the effect of demeaning him, were derogatory, disparaging and libelous of his character and reputation. That by reason of publication of the said words which were false, malicious, unwarranted, published out of malevolence, spite, malice and ill-will, the Plaintiff was severely injured in his character, personal credit and reputation. Consequently, his reputation was gravely lowered in the estimation of right-thinking members of the society generally, his fellow MP’s, rank and file in government, constituents, friends and colleges in the legal fraternity therefore has been subject to public ridicule, scandal, odium and contempt, for which damages were sought.
3.On 13.12.2005, the Defendant filed a statement of defence denying the key averments in the plaint. In the alternative, the Defendant averred that in so far as the words in the publications consists of facts that were true in substance and in fact, and in so far as they consist of facts that they were true in substance and in fact, and in so far as they consist of opinions, they were fair comment on a matter of public interest, namely that the public has a right to know of any transactions involving parliamentarians and political leaders.
4.The foregoing formed the state of pleadings prior to hearing of the suit.
5.During the trial, the Plaintiff testified as PW1. He began by identifying himself as an Advocate of the High Court of Kenya and the Senator of Tana River County. He proceeded to adopt his witness statement dated 26.10.2023 as his evidence-in-chief and produced the documents appearing in his list of documents dated 22.11.2011 as they appear, as PExh.1 – 7. It was his evidence that the gist of his complaint against the Defendant, is that the latter used its column called “Palaver” to ridicule him, Kalembe Ndile and Kivutha Kibwana in their positions as politicians, which ridicule was intended to serve extraneous political objectives or to boost their circulation. Further that the series of articles intended to create a narrative that negatively impacted the persons named and to enable the Defendant sell its Newspapers while damaging his reputation as a politician.
6.During cross-examination, he stated that the fact of the material being defamatory was not just based on his view, given that many of his constituents having read the article raised it with him. He confirmed not having procured any witness in that regard. It was his evidence that the publication of 20.05.2005 does not mention the name of any person whereas he could not recall if by the said date the TPF had organized any rallies, but did so thereafter. He stated that the TPF was not a registered party or association, but a movement intended to become a political party eventually. He maintained that the movement was visible in the public arena as the members appeared in the media and publicized its agenda. He affirmed that the movement did not translate into a political party meanwhile that TPF ceased to exist after the 2007 General Elections.
7.It was his evidence that the TPF has not sued in regard to the defamatory articles. However, his name was expressly mentioned in the article relating to the TPF. He stated that the movement’s agenda at the time was to ensure that the country was not split between the two (2) key political parties in contention. That the purpose was achieved by voicing the sentiments that there should be no infighting in government by advocating for peace. However confirming that the said infighting ended after the 2007 General Elections. He went on to state that, at the time, he had no intention of joining LDP which was the opposition party and that it was untrue that he advised people in his constituency to arrest anyone joining LDP or the opposition. He however confirmed advising his constituents, even to date, not to join any opposition party because of the marginalized state of Tana River County. That at the time, the said County faced challenges arising from elephant attacks on people and their crops and to get Kenya Wildlife Service (KWS) to act, he raised the issue often in public but denied he incited constituents to kill elephants. He confirmed having been re-elected as MP for Garsen Constituency and that as of the date of the trial, he was serving as the Senator of Tana River County. It was his evidence that the article did not affect his election and that his complaint was that the publication demeaned him.
8.In re-examination, he asserted being a founding member and leader of the TPF which existed at the time of publication in issue. He stated that his images were included in the publication and his reputation was negatively impacted because of the publication.
9.On the part of the Defendant, the Maureen Nasike testified as DW1. She identified herself as a legal officer with the Defendant and proceeded to adopt her witness statement dated 13.03.2024 as her evidence-in-chief. In cross-examination, she confirmed the publication and that at the time the Plaintiff was the MP for Garsen Constituency. She asserted that the statements in the publication were factual and made in good faith. Explaining that the Defendant usually obtained comments on subjects of their articles before publication and that the same was done in respect of the impugned publications. However, she did not tender any such before Court. On re-examination, she maintained that the publication was fair comment on a matter of public interest because the Plaintiff being a public officer was the subject of public scrutiny and denied that the article was published maliciously.
10.At the close of the hearing, directions were taken on filing of submissions. Only the Defendant complied, when the matter came up for compliance. The Plaintiff on his part filed an application dated 22.10.2024 seeking principally to suspend the filing of final submission and that the Court be pleased to re-open his case limited only to adducing additional testimony of one witness. The Court will address the Plaintiff’s motion later in this judgment.
11.That said, the Defendant’s submissions addressed the twin issues of liability and damages. Addressing the Court on whether the publication was defamatory of the Plaintiff, counsel anchored his submissions on the decisions in Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR Musikari Kombo v Royal Media Services Limited [2018] eKLR, Wycliffe A. Swanya v Toyota East Africa Ltd & Another [2009] eKLR and S M W vs. Z W M [2015] eKLR. To support the submission that the test whether an article is defamatory is a subjective one. It does not depend on the intention of the publisher but rather on how a reasonable person reading the statement would perceive it. That an examination of the words used in the Defendant’s publication, would not yield a defamatory sense because they were factual and true.
12.Further a reasonable person would recognize that the words were merely opinions coupled with political satire relevant to the publication, as routinely expressed by the newspaper outlet on various public interest topics pertaining to public figures. Particularly, it was an opinion that the leaders of the TPF pose no threat to the late President Kibaki’s political ambitions. While calling to aid the English decision in Fraser v Evans & Another [1969] 1 ALL ER 8 and Canadian decision in WIC Radio Ltd v Simpson [2008] SCC 40 cited with approval in Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR it was posited that the publication by the Defendant was based on and constituted inference of fact with no intention of malice.
13.On whether the publication was malicious, counsel cited the decision in Phinehas Nyagah v Gitobu Imanyara [2013] eKLR to submit that in the instant matter, there is no evidence to suggest that the Defendant acted out of spite or ill-will towards Plaintiff. That the relationship between the parties prior to and after the publication did not indicate any animosity or ulterior motive that would support a finding of malice, as confirmed by the Plaintiff during cross-examination. That a reasonable inquiry into the facts was conducted before publishing the statements whereas the opinions expressed were based on observable events and public information, demonstrating a responsible approach to reporting. Further, there was no indication that the Defendant acted recklessly or disregarded the truth. It was further argued that it was insufficient for the Plaintiff to merely assert that the publication was malicious, without evidence proving that the statements, based on their language construction, were inaccurate and that the information published lacked veracity. The provisions of Section 107 of the Evidence Act and the decision in Samuel Ndung’u Mukunya v Nation Media Group Limited & another [2015] eKLR were called to aid in that regard. Regarding whether the publication was intended to lower the Plaintiff’s estimation in the eyes of the right-thinking members of the society, the Defendant summarily submitted that the Plaintiff did not adduce evidence to demonstrate the manner in which the publication has tainted his image or the manner in which he has suffered harm. Therefore, the Plaintiff failed to establish the requisite ingredients to sustain a claim of defamation as against the Defendant.
14.On quantum, counsel argued that the Plaintiff has failed to properly plead the claim for defamation as required under Order 2 rule 7(1) of the Civil Procedure Rules (CPR) and as such was not entitled to general damages for libel. While placing reliance on the decisions in Luisa Marigu Mugo v Nguyo Joseph Kingori & another [2019] eKLR and S M W (supra) counsel posited that the Plaintiff has failed to advance his claim and that any orders as to damages would amount to unjust enrichment. Especially as no proof of any loss occasioned by the actions of the Defendant was tendered by the Plaintiff. Concerning aggravated and exemplary damages, counsel cited the decisions in John v MGN [1996] ALL ER as quoted by the Court of Appeal in Riches v News Group Newspapers Ltd [1985] All ER and Mikidadi v Khaigan & Another [2004] eKLR as cited with approval in Sankale Ole Kantai v Nyamodi Ochieng Nyamodi & another [2012] eKLR to submit that the Plaintiff has made no effort to prove that the Defendant has enjoyed any material advantage and is thus not entitled to an order for exemplary damages. In conclusion, it was submitted that the Defendant having made the publication as fair comment on occasion of truth and justification, and the Plaintiff having failed to prove malice on the Defendant’s part, the Plaintiff had not justified an award for aggravated or exemplary damages and the same should be dismissed
15.As earlier noted, when the matter came up for compliance aimed at confirming filing of submissions as earlier directed by the court, the Plaintiff’s application dated 22.10.2024 was on already on record. The motion was expressed to be brought inter alia pursuant to Section 1A, 1B & 3A of the Civil Procedure Act (CPA). The grounds on the face of the motion were amplified in the supporting affidavit sworn by the Plaintiff. The gist thereof being that he had just learnt that the matter was coming up for mention to confirm filing of submissions and he wished to adduce additional evidence by calling one (1) witness. That despite his instructions and statement to erstwhile counsel, he had since established that said counsel failed to file and adduce the additional evidence which was crucial to the determination of his case on merit. He goes on to depose that he would be highly prejudiced should the opportunity to adduce additional evidence be disallowed. Stating that he ought not to be prejudiced by mistake of erstwhile counsel and that the Defendant would not be prejudiced if the motion was allowed in the interest of justice.
16.The Defendant opposed the Plaintiff’s motion by way of grounds of opposition dated 28.10.2024.
17.The motion was canvassed orally before the Court. Counsel for the Plaintiff reiterated the affidavit material in support of the motion. In urging the Court to find that mistakes of counsel are common and in deserving cases ought to be overlooked by Court, counsel relied on the decisions in Joseph Wekesa v Hilds Wanjiru [2013] eKLR and Sheikh Hauliers v Highland Hauliers [1998] eKLR. Counsel asserted that no prejudice will be suffered by the Defendant as they will have an opportunity to cross-examine the witness and emphasizing the Plaintiff’s readiness to file the witness statement and expedite the hearing given the age of the suit. It was further pointed out that the Plaintiff had changed counsel severally and that it is only fair for the Plaintiff’s right to fair hearing under Article 50 of the Constitution to be given effect. Citing the decision in Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd [2015] eKLR, counsel submitted that this Court has discretion to allow re-opening of a case except that it ought not prejudice the opposing party which is unlikely here.
18.On the part of the Defendant, counsel relied in toto, on the grounds in opposition filed in response to the Plaintiff’s motion. He pointed to the age of the matter and late timing of the Plaintiff’s motion after the defence case was closed and submissions filed. Equally relying on Samuel Kiti Lewa (supra), counsel contended that allowing the motion would obviously prejudice the Defendant. Besides, the Plaintiff has not demonstrated that the evidence was not previously available to him and or evinced alleged instructions to erstwhile counsel with regard to calling a second witness. Citing the decision in Kagwira Mutwiri Kioga & another v Standard Chartered Limited & 3 others [2015] eKLR counsel posited that in the absence of a character witness there is no reason to re-open the case. He urged the court to find that litigation ought to come to an end.
19.In a brief rejoinder, Counsel for the Plaintiff submitted that this is a final opportunity for the Plaintiff so that his case is determined on merit pursuant to Article 50 of the Constitution.
20.In an extempore ruling, this Court not being persuaded of its merits dismissed the Plaintiff’s motion while reserving reasons to be given in the judgment as follows. The Plaintiff’s motion is properly predicated on Section 3A of the CPA, in light of the relief being sought, namely, re-opening of the Plaintiff’s case limited to only adducing additional evidence of one (1) witness. As to the purport of Section 3A, the same was reasonably addressed by Court of Appeal in Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR.
21.Regarding the applicable principles, the Court of Appeal in Wadhwa (As Legal Representative of the Estate of Deshpal Omprakash Wadhwa) v Mohamed & 4 others (Civil Appeal 33 & 148 of 2019 (Consolidated)) [2022] KECA 25 (KLR) cited with approval the decision of Kasango, J. in the case of Samuel Kiti Lewa Vs Housing Finance Co. Of Kenya Ltd [2015] eKLR. The Court of Appeal stated that: -41.The Ugandan Court in the case Simba Telecom (supra) held thus:“I agree with the holding in the case of Smith Versus South Wales Bar Association [1992] 176 CLR 256, where it was held that the question of whether additional evidence should be taken at the trial is considered separately from the question of whether the case should be reopened. Consequently, even after the case has been reopened, the court retains its discretionary powers whether to admit any piece of evidence or not.”
22.In the case of Raila Odinga & 5 others v IEBC & 3 other [2013] eKLR the Supreme Court stated as follows on the correct legal position where the Court considers whether to admit or reject additional evidence:
23.Further, this Court concurs with the rendition of Mutungi, J. in Odoyo Osodo v Rael Obara Ojuok & 4 others [2017] eKLR wherein he stated that: -
24.There is no dearth of decisions relating to re-opening of a cases and or adducing of additional evidence. Nevertheless, it is trite that granting of such a motion is discretionary and it is relevant to inquire into why the re-opening is sought, the delay (if any) and the reasons additional evidence is sought to be introduced. Here, the Plaintiff stakes his plea to re-open the matter and adduce additional evidence on mistake of erstwhile counsel. However, upon a review of the affidavit in support of the motion, there is no evidence in respect of the alleged instructions to erstwhile counsel to present the said additional witness statement in respect of the matter. The Plaintiff has further not exhibited in his affidavit the statement of the said additional witness to enable the Court to prima facie interrogate its relevance to the matter. Since 30.10.2023 when directions for the prosecution of the matter within six (6) months were issued and 14.03.2024 when the Plaintiff’s case was eventually heard, the latter had ample time to seek leave to present the said additional witness evidence via a written statement. In any event in a suit filed in 2005 and heard almost twenty (20) years later, it appears unfathomable that the Plaintiff only came to the realization of the said additional witness evidence so late in the day as he claims.
25.Thus, the Plaintiff’s motion, coming after the trial and filing of the Defendant’s submissions appears a mischievous attempt to seal gaps in his case, to the prejudice of the Defendant, who has already tendered his evidence and filed submissions. Further, it has not been demonstrated that the Plaintiff despite diligent efforts was unable to procure the said additional evidence or witness prior to hearing of his case. It may well be that the Defendant’s submissions have jolted the Plaintiff into this last ditch action rather than the alleged mistake of erstwhile counsel, itself unproven. Therefore, in the circumstances of this case, in granting the Plaintiff’s motion the court would effectively be opening the door to allow the Plaintiff to steal a march on the Defendant, thus violating the Defendant’s equal right to a fair and expeditious hearing. Hence, the reason the court’s decision declining to exercise its discretion in favour of the Plaintiff by allowing his motion.
26.Returning to the main issues for determination in the suit, the Court has considered the evidence on record and Defendant’s submissions. The key issue for determination is whether the Plaintiff has proved his case on a balance of probabilities and if so, the appropriate awardable damages. The Court of Appeal in Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, addressed itself as follows in this regard: -
27.The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated concerning the burden that: -
28.As earlier noted, the Plaintiff’s suit was founded on the tort of defamation, and here it is apposite to state the rationale behind the law of defamation. In that regard, the Court of Appeal had this to say in Musikari Kombo v Royal Media Services Limited [2018] eKLR: -
29.Actions founded on the tort of defamation often reveal the tension between private interest and public interest. Article 33(1) of the Constitution guarantees every person’s right to freedom of expression including the freedom to seek, receive or impart information or ideas but sub-Article (3) states that “In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others”. Article 34 guarantees the freedom of the media while Articles 25 and Articles 31 protect the inherent dignity of every person and the right to privacy. These rights are reinforced by the provisions of the Defamation Act. Contemplating these competing rights Lord Denning MR stated in Fraser (supra); -
30.In Selina Patani & Another vs Dhiranji V. Patani [2019] eKLR the Court of Appeal held that the law of defamation is concerned with the protection of reputation of persons, that is, the estimation in which such persons are held by others. In that case, the Court of Appeal stated that: -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.”
31.Here, the impugned publications were published on 20.05.2005, 27.05.2005, 14.06.2005, 20.06.2002, 21.06.2005, 13.07.2005 and 18.08.2005. There is no dispute in this case regarding ingredients (ii) and (iii) above as Defendant readily admitted to publishing the articles in question in its statement of defence, and appeared to concede to the issues during the trial. The key issues in dispute are whether the articles as published are defamatory and false and or whether the defence of truth or fair comment as per Section 14 and 15 of the Defamation Act are available to the Defendant. This Court proposes to deal with these issues concurrently.
32.It is common ground that as of the dates of publication, the Plaintiff was a MP for Garsen Constituency, the Assistant Minister Land and Housing, an advocate of the High Court of Kenya and the founding member of a political pressure group known as the Third Progressive Force (TPF). And that the Defendant published a series of articles in “The Standard” newspaper under the “Palaver” column between 20.05.2005 and 13.08.2005 which the Plaintiff viewed was disparaging of his character and person.
33.I find it useful at this stage to set out in extenso the contents of the publications complained of. The printed version published on 20.05.2005 read as follows: -
34.The article published on 27.05.2005, read as follows: -
35.The article published on 14.06.2005, read as follows: -
36.The article published on 20.06.2005, read as follows: -
37.The article published on 21.06.2005, read as follows: -
38.The article published on 13.07.2005, read as follows: -
39.And, finally the article published on 18.08.2005, read as follows: -
40.On the question whether the words referring to the Plaintiff were defamatory, the test to be applied is that spelt out in the case of the Onama v Uganda Argus Ltd (1969) EA by the East African Court of Appeal was that:
41.The Court stated in Elizabeth Wanjiku Muchira v Standard Ltd [2011] eKLR that whether a statement is defamatory or not is not so much dependent on the intentions of the defendant but on the “probabilities of the case and upon the natural tendency of the publication having regard to the surrounding circumstances. If the words published have a defamatory tendency it will suffice even though the imputation is not believed by the person to whom they are published.”-Clerks & Lindsell on Tort 17th Edition 1995-page 1018.”
42.The respective printed articles published between 20.05.2005 and 18.08.2005 appear ex facie to be some form of political commentary laced with satire, as argued by the Defendant. The articles employed words and phrases such as “The now moribund Third Progressive Force”, “They are all sound and fury that signifies nothing”, “it should be called Third Retrogressive False Start” “the Third Retrogressive (oops, progressive) Force” “arrest and castrate anybody who is spreading rumors that he has defected to the Liberal Democratic Party”, “kill stray elephants and has actually asked his people to kill those that attack them” and “Some loose ensembles like these ones thrive on attention”.
43.The gist of the articles appears comprise of barbs thrown to critic members of TPF or the TPF itself, which the Plaintiff admitted was not a registered party or association but a movement intended to become a political party. Nevertheless, the commentary by the author of the said articles equally employs words and phrases such as “arrest and castrate” and “kill stray elephants ….that attack them” which the Plaintiff views as defamatory in their natural and ordinary meaning and or by innuendo as pleaded in paragraph 7 of the plaint.
44.In Halsbury’s Laws of England 4th Edition Vol. 28 paragraph 10 - a defamatory statement is defined as follows:
45.The Court of Appeal in Musikari Kombo (supra) stated that: -
46.As rightly contended by the Defendant, the Plaintiff did not adduced evidence to demonstrate that the words in the publications were defamatory and had the effect of lowering his reputation in the eyes of right thinking members of society, as pleaded in his plaint. The onus was on the Plaintiff to demonstrate that an ordinary reasonable person who knew the Plaintiff before or as of the date of publication of the articles would upon reading the said publication, view the Plaintiff differently. Or in other words, to demonstrate that the articles, whether believed by such reader or not, had the tendency to lower the reputation of the Plaintiff in the reader’s eyes. As stated in Hezekiel Oira v Standard Limited & Another [2016] eKLR the successful claimant in a defamation cause must tender evidence not only that the publication complained of bore falsehoods, but also that the published words tended to lower his reputation, causing right thinking members of society to shun or avoid him or to treat him with contempt. Equally, in the court’s view, the Plaintiff’s evidence did not seriously address the false nature of the articles.
47.That said, the only witness who testified in support of the Plaintiff’s case was the Plaintiff himself. Defamation involves imputations that tend to cause injury to the reputation of a person. Thus, a successful plaintiff must demonstrate the injury to his reputation or standing as a component of the ingredients of defamation, and not merely rely on his own estimation of himself and his own perceptions regarding the effect of the alleged defamatory statements to that estimation.
48.In SMW (supra), the Court of Appeal observed that: -
19.The trial judge had considered the testimony of witnesses with a view to assessing their credibility and at no point did any of the Appellant’s witnesses at trial consider the appellant to have been defamed by the contents of the letter. The witnesses who testified at trial constitute and pass the ordinary reasonable man test as they were not only neighbours but also people known to the disputants. There was no evidence of any public ridicule, hatred or even shunning experienced by the appellant.The appellant had only testified at the trial court that he felt shy to interact with some of his friends in tea farming. The appellant appears to have had an apprehension of defamation on himself ostensibly based on how he himself considered his standing in the society. That is not what defamation is in law. The appellant himself further testified before the trial court that nothing had changed in his dairy farming business. Moreover, despite being a tea farmer in Gatundu, he had since relocated to his Karen home at the time of these proceedings where the chances of any possible defamation of him became slimmer based on the existing solitary and liberal lifestyle adopted by urbanites. As elucidated earlier, the test to be applied is that of the reasonable ordinary man, not the appellant or the respondent…” (Emphasis added).
49.The above holding was reiterated in Patani’s Case (supra), where the same Court stated that: -
27.The evidence on record is the testimony by the 2nd appellant that her boss read the letter. The alleged boss was never called to testify. No other third party was called to testify as to the publication and injury to reputation. As to whether the appellant’s character and reputation was destroyed, there is no evidence on record from a third party stating that as a result of reading the impugned letter, the appellant’s reputation and standing in society was injured. It is in this context that we agree with the learned Judge that a person’s own view about his/her reputation is not material in a claim for defamation; there must be evidence from a third party to the effect that the standing and reputation of the claimant has been lowered as a result of the defamatory publication. In the absence of third party evidence, we find no error of law on the part of the Judge in arriving at the determination that the appellants did not prove their claim for defamation. (Emphasis added)See also Daniel N. Ngunia v K.G.G.C.U. Limited (2000) eKLR and Hezekiel Oira v Standard Limited & Another (2016) eKLR.
50.Similarly, in this case, the Plaintiff did not tender evidence through other witnesses that the words in the article complained of caused or had the tendency to cause injury to his reputation by way of public ridicule or even being shunned, or that it tended to lower his esteem in the eyes of right-thinking members of society. This despite averments in his pleadings that his estimation before right-thinking members of the society generally, his fellow MP’s, rank and file in government, constituents, friends and colleges in the legal fraternity was lowered. While the publications seem to be patently unflattering of the persons named therein, the test to be applied is that of the reasonable ordinary man; it is not the Plaintiff’s view of himself that matters, as stated in Musikari Kombo (supra).
51.In the absence of proof of the defamatory, never mind the false nature, of the alleged offensive publications, it is difficult to see how a claim founded on the tort of defamation could succeed, whether or not the defences of truth or fair comment raised by the Defendant pursuant to Section 14 and 15 of the Defamation Act were sustainable.
52.As held in the case of Wareham t/a A.F. Wareham & Others (supra), if the evidence tendered by a plaintiff does not support the pleaded facts, the plaintiff being the party bearing the burden of proof should fail. See also Karugi & Another v Kabiya & 3 Others (supra). In the result, the Court finds that the Plaintiff has failed to prove all the necessary ingredients of defamation to the required standard. The Plaintiff’s suit must fail and is hereby dismissed with costs to the Defendant.
DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5TH DAY OF DECEMBER 2024.C. MEOLIJUDGEIn the presence ofFor the Plaintiff: N/AFor the Defendant: Mr. OkiringC/A: Erick