https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9437

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **THE CIVIL APPELLATE DIVISION** ***(Coram: A.C. Mrima, J.)*** **CIVIL APPEAL NO. E1155 OF 2024** ***-between-*** **ASHISH CHADDA …..................................................... APPELLANT** *-****versus-*** **NATION MEDIA GROUP LIMITED ….......................... RESPONDENT** ***(Being an appeal from the Judgment and Decree of Hon. S. Muchungi Commercial Courts in Milimani Chief Magistrates Commercial Court Case No. 257 of 2023, delivered on 27th September 2024)*** **JUDGMENT** **Background:** 1. *Ashish Chadda*, the Appellant herein, instituted a defamation claim against *Nation Media Group Limited*, the Respondent herein in *Milimani Chief Magistrates Commercial Court Case No. 257 OF 2023, (hereinafter referred to as ‘****the suit’****)*. He was the Chief Finance Officer (CFO) of *Lake Turkana Wind Power Limited* [hereinafter referred to as ‘**LTWPL**’]. 2. The Respondent published three articles on its digital and print platforms. The articles stated that the Appellant, alongside the then CEO *Jon Abbas Zaidi*, had been shown the door over allegations of financial misconduct. The articles claimed the two were named for an alleged irregular pay from the firm’s coffers without the board’s approval, which saw PricewaterhouseCoopers (PwC) hired to do a forensic audit of the company’s books. 3. Aggrieved, the Appellant filed a Plaint dated 13th April 2022 seeking damages for defamation, an injunction, and a retraction, arguing that the articles were false, malicious, and failed to mention that he left LTWPL *via* a Mutual Separation Agreement signed on 23rd July 2021. 4. The Respondent, in its Statement of Defence dated 10th November 2022, contended that the publications were substantially true, constituted fair comment on a matter of profound public interest, and were published in the exercise of freedom of the media under Article 34 of the Constitution. 5. The Appellant testified as PW1. *Brian Ambani* testified as DW1 for the Respondent. The two were the sole witnesses. Upon conclusion of the hearing, the trial Court dismissed the Appellant’s suit with costs. It found the articles substantially true, not actuated by malice, and that no actual loss was proved. 6. It was the dismissal that prompted this appeal which was heard by way of written submissions, hence, this judgment. **The Appeal:** 1. Dissatisfied with the trial Court’s judgment, the Appellant, through a Memorandum of Appeal dated 2nd October 2024, raised the following grounds of appeal: - 2. *The Learned Magistrate erred in law in finding that the Plaintiff had not proved to the satisfaction of the court of the legal ingredients of the Tort of defamation as against the Respondent.* 3. *The Learned Magistrate erred in finding that the impugned articles that were the subject of the case were not defamatory and/or false.* 4. *The Learned Magistrate erred in fact in her finding that the impugned articles that were the subject of the case were substantially true.* 5. *The Learned Magistrate erred in her findings within the Judgment that the failure of the Respondent to mention in the impugned articles that the Appellant’s separation with the employer namely Lake Turkana Wind Power was of no consequence.* 6. *On the issue of malice, the Learned Magistrate erred massively in fact by finding that there was no evidence of the Respondent’s articles being actuated by malice despite the same being clearly demonstrated during the trial.* 7. *The Learned Magistrate erred in law and in fact by finding that the impugned articles that were the subject of the case were written and published by the Respondent in public interest.* 8. *On the issue of loss to the Appellant, the Learned Magistrate erred by finding that the Appellant did not suffer any loss as a result of the published articles by the Respondent.* *The Submissions:* 1. The Appellant filed written submissions dated 21st April 2025. It was his case that the judgment was significantly flawed and did not reflect the trial proceedings or the evidence adduced. He argued that the Learned Magistrate wrongly concluded that he had been contacted by the Respondent’s reporter, Brian Ambani, for a right of reply prior to publication. The Appellant contended that there was malice and noted that no corroborative evidence such as emails or SMS messages was produced to prove he was reached for a comment. 2. The Appellant further submitted that the trial Court erred in finding the articles substantially true based on Brian Ambani’s testimony regarding a forensic report, considering Ambani admitted during cross-examination that he had never actually seen the PwC forensic report. The Appellant faulted the trial Court for concluding that his departure from LTWPL was pending before another Court, asserting instead that he had entered into a Mutual Separation Agreement with LTWPL, meaning he was not sacked as insinuated. 3. Lastly, he submitted that the information was planted by directors or officers of LTWPL and that the media was used to coerce him out of office, subsequently causing him significant financial loss. 4. The Appellant prayed that the appeal be allowed and damages be awarded. **The Respondent’s case:** 1. *Nation Media Group* challenged the appeal through written submissions dated 19th May 2025. It was its case that the trial Court was justified in dismissing the suit as the articles were a fair and accurate reporting of matters of public interest. It highlighted that LTWPL supplies about 17% of Kenya’s power and is paid using public funds, making its financial management a matter of public concern. The Respondent argued that the defence of justification was successfully established. It relied on the Appellant’s own pleadings in the Employment and Labour Relations Court (*ELRC Cause No. E702 of 2022 - Ashish Chadda vs. Lake Turkana Wind Power Limited*), where the Appellant himself pleaded that he was suspended pending a forensic audit, and that he was grilled by PwC over payments. 2. On malice, the Respondent submitted that its reporter, *Brian Ambani*, diligently reached out to all parties, including LTWPL Chairman *Mugo Kibati*, the former CEO *Jon Zaidi*, and the Appellant. The Appellant answered the call but claimed he was driving and did not provide a comment subsequently. 3. Regarding damages, the Respondent submitted that the Appellant failed to call any independent witness to prove his reputation was lowered in the estimation of right-thinking members of society. It also submitted that, the Appellant failed to produce an actual mortgage application or official bank rejection to prove his claims of financial loss. **Analysis & Determination:** 1. Having considered the record alongside the rival submissions, the following issues emerge for determination: - 2. *Whether the impugned articles published by the Respondent were defamatory.* 3. *Whether the defence of justification was established.* 4. As a first appellate Court, this Court is duty bound to reappraise the evidence presented before the trial Court and draw its own conclusions. It must bear in mind, however, that it neither saw nor heard the witnesses testify. The above role was well articulated in *Selle -vs- Associated Motor Boat Company Ltd. [1968] E.A. 123,* where the Court observed; *… the Court of Appeal is a first appellate Court. It is not sufficient to merely scrutinize the evidence and say whether the trial Judge was right or wrong. An appellate court is not bound to accept the trial Judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally* 1. In the case of ***Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates***[2013] eKLR the court observed as follows: - *… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212.* 1. With the above guidance, this Court will now consider the issues in turn. **[a] Whether the impugned articles published by the Respondent were defamatory:** 1. The resolution of this case turns on the question whether the published articles were defamatory. It is, therefore, essential to appreciate the definition of the term. ***Halsbury’s Laws of England*** *4th Edition Vol. 28* defines it as follows; *… a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.* 1. ***Winfield on Tort***definesa defamatory statement as follows; *the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person.* 1. InCivil Appeal 114 of 2017***Selina Patani & another -vs- Dhiranji v. Patani*** *[*2019] eKLRthe Court of Appeal quoted with approval the High Court decision in ***John Ward -vs- Standard Ltd****,*HCCC 1062 of 2005where the essential ingredients for defamation were stated thus; 2. *The statement must be defamatory.* 3. *The statement must refer to the plaintiff.* 4. *The statement must be published by the defendant.* 5. *The statement must be false.* 6. The***Halsbury’s Laws of England****, 4th Edition Vol. 28* at page 23sets the parameters within which a Court uses to make an assessment as to whether *defamation* has occurred. It provides as follows; *…in deciding whether or not a statement is defamatory, the Court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under any circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in defamatory sense.* 1. Flowing from the above, the Appellant’s case turns on whether the articles complained of lowered the Appellant’s reputation in the estimation of an objective reasonable person. 2. This Court has appreciated the articles the Appellant found offensive. They were titled as follows; *“Lake Turkana Wind Power appoints new CEO”* dated on 13 October 2021; “*German lender rejects Sh785m wired to CBK*” dated on 2nd February 2022; and “*Treasury disowns Sh785m wired to CBK in Germany”* dated 3rd February 2022. The articles, no doubt, depict the Appellant as having financially mismanaged LTWPL, and as a result, was shown the door. 3. Going by the definition of a ‘*defamatory statement*, it is indeed apparent that attributing the Appellant’s removal from office as CFO to financial mismanagement is defamatory. It lowers his reputation in the right-thinking members of the society. It exposes him to contempt and ridicule thus lowering and injuring his reputational rating. The first requirement was, therefore, satisfied. 4. On the second ingredient, the first document titled *Lake Turkana Wind Power appoints new CEO* stated as follows*;* *His short tenure ended alongside the company’s CFO Ashish Chadda both fingered for allegedly irregular paying themselves from the firm’s coffers without the firm’s approval.* 1. Thesecond one, titled *German lender rejects Sh785m wired to CBK*” narrated the story as follows; *The two were fingered (Mr. Zaidi and Ashish Chadda) for an alleged pay from the firm’s coffers without the board’s approval, which saw PricewaterhouseCoopers (PwC) hired to do a forensic audit…* 1. The third article titled, *Treasury disowns Sh785m wired to CBK in Germany,* articulated its story as follows; *His short tenure ended alongside the company’s chief finance officer Ashish Chadda. The two were fingered for an alleged irregular pay from the firm’s coffers without the board’s approval, …* 1. As far as the second and the third requirements go, it is readily discernible that the Articles referred to the Appellant and they indeed were published. 2. The third requirement regarding whether the statement were false calls for an in-depth appraisal of the evidence. The Respondent claimed the defence of justification. It is a complete defence when successfully demonstrated. The impugned articles alleged that the Appellant was suspended for irregular payments without board approval, prompting a forensic audit by PwC. The Appellant vehemently argued that it was false because he left *via* a Mutual Separation Agreement on 23rd July 2021. This Court has comprehensively examined the Appellant’s own pleadings in *ELRC Cause No. E702 of 2022* (hereinafter ‘***ELRC Suit***’). The Statement of Claim confirms the factual occurrence of the Respondent’s publications in paragraph 22 (viii). Further, among the documents in the ELRC suit, is the letter dated June 2021, referenced *Suspension, Investigation & Possible Disciplinary Proceedings* addressed to the Appellant. It highlights the reasons for the Appellants suspensions to include “*irregular and unlawful payments*”, and *failure to perform duties to the required standard* among others. Further, the Appellant, during cross-examination, conceded that PwC conducted a forensic audit where he was grilled over certain payments. 3. From the totality of the above, the core facts published by the Respondent, that there were allegations of financial misconduct, a suspension, and a forensic audit by PwC, were factually correct. 4. As to whether the defence of justification was established, *The* ***Black’s Law Dictionary***10th Editiondefines the word ***justification*** at page 997as follows; *A lawful or sufficient reason for ones acts or omissions; any fact that prevents an act from being wrongful.* *A showing, in court, of a sufficient reason why a defendant acted in a way that, in the absence of the reason, would constitute the offence with which the defendant is charged.* 1. The said Dictionary further defines “***Justification defence****”* at page 998 as follows; *a defence that arises when the defendant has acted in a way that the law does not seek to prevent.* 1. The Court of Appeal in Civil Appeal No. 286 of 2016,***Raphael Lukale -vs- Elizabeth Mayabi & another*** *[*2018] eKLR had the occasion to discuss the defence ofjustification in the tort of defamation. While making reference to Regulation 22 of Kenya Information and Communication Regulations, 2009 it stated as follows: *…. Statements that are potentially defamatory ought to be ascertained and verified before they are released to the public.****Regulation 22****of the Kenya Information and Communications (Broadcasting) Regulations, 2009 requires verification of information by a broadcaster before public dissemination as follows:* ***22. Unconfirmed reporting:*** ***A licensee shall ensure that—*** ***(a) reports or broadcast from its station are based on fact and that are not founded on opinion, rumour supposition, or allegation unless the broadcast is carried out in a manner that indicates these circumstances clearly;*** ***(b) it does not broadcast any report where there is sufficient reason to doubt its accuracy and it is not possible to verify the accuracy of the report before it is broadcast.*** 1. In making a determination on the availability of the defence of justification, the Learned Judges first addressed *malice* and *recklessness* and had the following to say: - *Malice can be inferred from a deliberate or reckless ignoring of facts. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. Malice may also be inferred from the relations between the parties before or after the publication or in the conduct of the defendant in the course of the proceedings. See****Godwin Wachira v Okoth****(1977) KLR 24 and****J P Machira v Wangethi Mwangi,****Civil Appeal No. 179 of 1997.* 1. While making a finding that the defence of justification was not available to the Defendant, the Court observed thus; *… The respondents claimed that the defence of justification was available to them. That defence is (sic) justification available if the truth in the offending statement is proved. On the other hand, fair comment, on which the respondent also relied, is proved if the statement complained of is an expression of opinion made as fair comment.* 1. Coming back to the issue at hand, it is evident that the failure to mention the Mutual Separation Agreement did not negate the truthfulness of the suspension and the audit. It is also clear that the publication was in consonance with Regulation 22 of the Kenya Information and Communications (Broadcasting) Regulations, since they were substantially true. Similarly, the aspect of malice cannot be discerned from the publication. The Appellant did not lead any evidence to substantiate ill motive, deliberate or reckless ignoring of the facts by the Respondent. It took steps to verify the information. The Respondent was reporting on verified occurrences at a company that is critical to the national power grid, thus operating firmly within the realm of public interest and the freedom of the media. In sum, the reporting was not false since it was based on verified facts. 2. Cumulatively, therefore, this Court finds and so holds that the Respondent had sufficient reason in making the publication, essentially bringing it within the defence of justification. **Disposition**: 1. In conclusion, this Court finds that the trial Court properly evaluated the evidence and applied the correct legal principles. The Appellant failed to prove the ingredients of defamation, while the Respondent successfully established the defence of justification on a matter of public interest. 2. In the end, this Court finds that the appeal lacks merit. The following final Orders hereby issue: - **[a] The appeal is hereby dismissed.** **[b] The Judgment in Milimani Chief Magistrates Commercial Court Case No. 257 of 2023 delivered on 27th September 2024 is accordingly upheld.** **[c] The costs of this appeal are awarded to the Respondent.** Orders accordingly. **DELIVERED, DATED** and **SIGNED** at **NAIROBI** this **23rd** day of **June 2026.** **A. C. MRIMA** **JUDGE** **Judgment virtually delivered in the presence of:** **Mr. Adoyo,** LearnedCounsel for the Appellant. **Mr. Kyalo,** Learned Counsel for the Respondent. **Michael/Amina** –Court Assistants.