https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6917

BCR v PC & another (Civil Appeal 1 of 2025) [2026] KEHC 6917 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 6917 (KLR) Republic of Kenya In the High Court at Kapenguria Civil Appeal 1 of 2025 RPV Wendoh, J May 21, 2026 Between BCR Appellant and PC 1st Respondent IC 2nd Respondent Judgment 1.By a plaint dated 11/4/202017, PC and IC, the Respondents (formerly plaintiffs), filed this suit against BCR claiming general damages for defamation and embarrassment of the plaintiff, Special damages of Kshs.658,500/= and a permanent injunction to restrain the defendant (Appellant) by herself or anyone claiming through her from interfering with the plaintiff’s freedom of Association and marital affairs. 2.The appellant filed a defence dated 30/8/2017 and denied being responsible for the decision by the priest to stop the marriage and that the decision was the discretion of the priest to decline or allow her objection. After the court heard the parties, Judgment was entered in favour of the Respondents as follows; -1.Special damages 658,500/= ;2.General damages Kshs.50,000/= ;3.Costs. 2.The appellant being aggrieved by the said Judgment, filed the instant appeal citing the grounds which the appellant’s Counsel summed the same into four issues as follows; -1.Whether the appellant had a lawful right to raise an objection under the Marriage Act;2.Whether the trial magistrate had the inherent powers to shift the burden of proof from the plaintiff/Respondent to the appellant;3.Whether the trial magistrate was right in awarding an action not pleaded;4.Whether unjust enrichment is justifiable. 3.The appeal was canvassed through written submissions. Mr. Kiarie and Company Advocates filed submissions on behalf of the appellant dated 24/12/2025. 4.Samba and Company Advocates Counsel for the Respondent also filed their submissions dated 30/12/2025. 5.This being the first appellate court, it is required of this court to re-examine all the evidence tendered in the trial court afresh, analyze it and arrive at its own determinations but bear in mind that it neither saw nor heard the witnesses testify. 6.This principle was espoused in the case of Selle -V- Associated Motors Boat Co,. Limited (1968) EA 123. Where the court said “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has 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.” Respondent’s Case: - 7.Four witnesses testified on behalf of the Respondents. PW1 is the 1st Respondent PC who adopted his written statement dated 18/06/2017 as his evidence in chief. He testified that he got married to IC in 2000 under Pokot Customary Law and on 3/6/2008 the marriage was solemnized at Kapenguria District Commissioners office and it was registered with the Registrar of Marriages. They decided to renew their vows in the St. Mary’s Assumption Catholic Church at Makutano in December 2016. 8.They prepared for the day by printing cards, bought clothes, food and invited friends and relatives for the celebration on 31/12/2016. However, on 30/12/2016, the priest at the said church summoned them and told them that he would not preside over their marriage ceremony because an objection had been received from the appellant’s Advocates stating that the appellant was inter alia, married to the 1st Respondent which allegations were false; that the priest cancelled the ceremony which action caused them a lot of embarrassment, inconvenience and financial loss; that they were unable to explain to their intended guests what happened and many understood that they were living an adulterous relationship and not as husband and wife and that is why they claimed damages for defamation and special damages for the loss suffered. In cross examination, PW1 admitted that he had one child with the appellant and in 2008, he was sued for maintenance and the court ordered that he maintains two children SC his child and ET who was not his. He denied knowing D Powon born on 17/1/2008 though his name appears in the birth certificate as his child. He admitted having had an affair with the appellant in 2004 as a result of which S was born on 5/2/2005; He denied the other children D born on 17/1/2008, Ethan born on 29/11/2015, Ian Kopus born 3/4/2019. He admitted to having had an affair with the appellant during his marriage. 9.PW2 Chief Inspector IC had agreed with the contents of PW1 as the correct position. According to her, she got married to PW1 under Pokot customs in 2002 and got her first child in 2004. They solemnized the marriage in 2008 and in 2009, she realized, that PW2 had children and away; that PW1 acknowledged an affair with the appellant and that only one child was his. She was aware of the maintenance case filed by the appellant where an award of Kshs.10,000/= was made for maintenance of one child. 10.PW3 HC also adopted her written statement dated 12/6/2017; that she knew the 2nd plaintiff (2nd Respondent) before 2000 and PW1 since 2000; that she had been requested by PW2 to be her best maid while the husband was the best man; that she learnt of the cancellation of the ceremony on 30/12/2016 when going to collect her clothes for the ceremony. She denied knowing that PW1 had a love affair. She was aware of the solemnization of the marriage on 31/12/2016 which had been announced and all preparations done. She denied having heard of B and did not believe that she had cohabited with P. She said that she regarded PW2 as adulterous. 11.PW4 Loice Chepkiyeny is a volunteer at Child Welfare and neighbour to the Respondents and had known them since 2000. She denied knowing of B (appellant). She was aware of the wedding celebration which was to take place on 31/12/2016. She prepared and went to the plaintiff’s home on that day only to be told of the cancellation of the ceremony and people could not understand the reasons for the cancellation and she got the feeling that the Respondent and appellant were living in an adulterous relationship because the appellant was the PW1’s wife. The appellants case. 12.The appellant testified as DW1; that the PW1 is the father of her four (4) children and that they had cohabited together from 2000 till 2019. She produced the birth certificates of the four children as exhibits; that she filed a cause No. 32/2008. 13.In the matter of SC and P, suing through BC -V- PC ,where PW1 was ordered to pay Kshs.10,000/= as maintenance for the children; that PW1 failed to pay the maintenance sums which stood at Kshs.593,000/= and that is why she wrote the letters dated 20/12/2016 and 29/12/2016 before solemnization of the marriage so that the maintenance issue of the children could be addressed; that it was the discretion of the priest to accept or decline the objection, and that the affected party had the right of appeal; that the appellant is not responsible for the decision made by the priest and she was never called at the hearing; that the letter addressed to the priest was factually correct and the issue of defamation does not arise nor did the issue of adulterous relationship arise because PW1 is the father of her children. Appellants Submissions 14.The submissions were addressed under four heads.“On whether the appellant had a lawful right to raise an objection under the Marriage Act; Counsel submitted that section 19 of the Marriage Act provides for when one may raise an objection and that in this case, the objection was lawful and its issuance was within the appellants right; that the court erred by not joining the priest to the proceedings because under section 19, if the plaintiff was dissatisfied with the priest’s decision, he should have appealed under section 19 (4) of the Act and the said section makes the priest subject to the proceedings; that failure to join the priest to the proceedings goes to the core of the parties’ rights and the trial court had a duty to consider that factor; that failure to do so led to miscarriage of justice.The second issue is whether the court had inherent powers to shift the burden of proof from the Respondent to the appellant; that despite the fact that the appellant explained the reason for the objection being clarification of the issue of maintenance of the children, the court went ahead to shift blame on the appellant that she failed to turn up to explain herself to the priest after she filed the objection; that it was the duty of the Respondents to prove damage on a balance of probability before award of damages. Counsel relied on the decision of Bonham Carter -V- Hyde Park Hotel Ltd. (1948) 64. The court said “plaintiffs must understand that if they bring actions for damages, it is for them to prove damage, it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying ‘this is what I have lost, I ask you to give me these damages’.”Whether the court can grant orders for an action not pleaded; it was submitted that the Respondent pleaded for general damages for defamation and embarrassment of the Respondent yet the particulars of the defamation as anticipated under Order 2 Rule 7 of the Civil Procedure Rules were not pleaded; that the court should not fix any liability on the appellant, for failure to plead. Counsel relied on the decision of Edward Shakala -V- Rosemary Halubwa Shakala & Another (2020) eKLR where the court held that it is the particulars that constitute the cause of action.Whether damages awarded amount to unjust enrichment; Counsel submitted that the objection having been made within the law and the priest having found the objection valid, it was an error to penalize the appellant by condemning her to pay special damages for the Respondent’s failures and ignorance of the law on the part of the court; that it amounts to unjustly enriching the Respondents at the expense of the innocent appellant. 14.Respondents Submissions. Samba Advocate, filed submissions on behalf of the Respondents, dated 30/12/2025. Counsel urged that the appellate court should be slow to interfere with the decision of the trial court which took the evidence of the witnesses and observed their demeanour; that the appellate court can only interfere where the trial court misdirected itself on the law and evidence. For the above proposition, Counsel relied on the decisions of R.V Dhunmayo & Another (1948) (2) SA 5677 (A) page 705-6 and SV Hadebe & others 1997 (2) SACR 641 (SCA) page 645 (e -f) 15.As regards the marriage and renewal of vows, Counsel submitted that under Section 59(1) of the marriage Act, a marriage is proved through a certificate of marriage, a certified copy or entry in the marriage register and that the Respondents were lawfully married as evidenced by the certificate of marriage and the renewal of vows at the Catholic church was a mere ceremonial event and could not alter the Respondents’ legal status; that the objection was therefore untenable and calculated to embarrass the Respondent socially and financially; that there was no wedding to stop under the marriage Act; that the claim that the objection was made in the best wishes of the children is self defeating because the Respondent was already in possession of a court decree which was enforceable by a court of law and therefore the objection would serve no purpose, there being a less intrusive statutory mechanisms for enforcement of the decree. 16.As regards the appellant’s conduct, Counsel submitted that the trial courts findings are supported by the law and evidence and legal precedent; that the burden of proof in civil cases under section 107,108 and 109 of the Evidence Act, lies on the party who alleges; that the Respondents presented to court credible evidence thereby shifting the evidential burden on the appellant who failed to discharge it. that the appellant failed to demonstrate that the objection to the ceremony was either necessary or the only means of securing child support and also failed to prove the allegations made in the letter to the priest that she was a wife to the 1st Respondent; that the Appellant acted recklessly and without justification thus causing unnecessary her to the Respondent for which she must be held accountable. Counsel urged this court to dismiss the appeal. Determination: - 17.I have given due consideration to the grounds of appeal, the evidence on record and submissions filed by both counsel. 18.This being a civil matter, the legal burden under sections 107, 108 and 109 is placed on the one who alleges to prove the allegations on a balance of probabilities. 19.The Respondents were set to renew their marriage vows on 31/12/2016 but before that date on 29/12/2016, the appellant filed an objection with the priest of the Catholic Church who was to officiate in the ceremony. 20.Under section 19 of the Marriage Act, a person may object to a Christian Marriage. The section provides as follows: -(1)“A person who knows of an impediment to an intended marriage may give a written notice of objection to the person in charge of a public place of worship where notice of intended marriage has been posted in accordance with section 26.(2)A notice of objection shall include the name of the person giving the notice of objection and the person’s relationship with either of the intended parties and shall state the reason for the objection to the intended marriage.(3)A person who has given notice of objection may, at any time, withdraw the objection in writing. 21.Because the ceremony was to take place in church, it was presumed to be a Christian Marriage. Under section 6 of the Marriage Act, Civil, Hindu and Christian marriages are monogamous. In the instance, the truth of the matter is that the Respondents were already married, having undergone a Civil marriage and had a valid marriage certificate Produced in evidence as P.Exh. No.3. The Civil marriage was solemnized on 3/6/2008. Under section 59(1) of the Marriage Act, a marriage in Kenya is proved through a certificate of Marriage, issued under the Act, a certified copy of the marriage certificate; an entry in the Registrar of Marriages maintained under the Marriage Act or any other written law. This being the circumstances prevailing, I do agree with the Respondents submission that that was going to take place on 31/12/2016 was a ceremonial event and would not have altered the Respondents’ status. 22.The objection to the priest dated 29/1/2016 addressed to Father Gitau of St. Mary Assumption Church Makutano read in part “that the above mentioned client and one PPC have been engaged in a love relationship since the year 2000 and later on cohabited as husband and wife from the year 2000 onwards. As a result of the said relationship the two have been blessed with three children namely…..” 23.If the priest was to officiate on the marriage, it meant that they were observing Christian rites and under section 6 of the Marriage Act, a Civil, Hindu or Christian Marriage is monogamous. 24.From a reading of the above paragraph in the objection, it can be inferred that the 1st Respondent, had another wife i.e., the appellant, with whom he has been cohabiting since 2000 yet he intended to enter into another Christian marriage with another. 25.The appellant argued that the Respondents should have appealed the decision of the priest if dissatisfied with it. However, that argument is self-defeating because there was no time to appeal. The objection was relayed on 30/12/2016 the day before the ceremony. The ceremony would not have proceeded in any event. 26.In my considered view, the priest was justified in declining to preside over the ceremony that was slated to take place on 31/12/2016.He could not officiate on a potentially polygamous marriage. 27.The next question then is whether the appellant was justified in objecting to the ceremony due on 31/12/2016. 28.The appellant stated that in raising the objection, she was not interested in being the wife of 1st respondent and she did not intend to stop the marriage. The appellant claimed to have objected to the ceremony because she intended to protect the rights of the children which she sired with the 1st Respondent because she had sued the 1st respondent in a children maintenance suit BCR -V- PPC child case no. 32 of 2008; that she had a decree for Kshs.593,150/= as of March 2017 in the said case, but the 1st Respondent had failed to pay. 29.Since the appellant had a decree, the question is why she did not follow the duly laid down mechanisms for execution of decrees. The priest has no capacity to enforce a court decree in the circumstances. 30.In my considered view, the path taken by the appellant was reckless and not justifiable. It was not done in good faith. She filed the objection last minute, a day before the ceremony and gave the priest misleading facts. And what a timing? She had had the decree since 2010 and made no effort to execute it so that it had accumulated to those sums. On learning of the ceremony, she moved fast with an objection. The excuse she gave for not executing the decree was not convincing. I come to the same conclusion as the trial court that the appellant acted recklessly and without justification in giving false information to the priest who called off the ceremony as a result of which the Respondents must have suffered tremendous loss in terms of expenditure as pleaded at paragraph 10 of the plaint. 31.The respondents claimed special damages. Special damages must be specifically pleaded and proved. The Respondent produced in evidence the relevant receipts for the services rendered, food, clothing etc. which were not controverted. The sum claimed was not controverted and this court finds that the claim was proved to the required standard. 32.The Respondents also sought general damages for defamation. It was the appellant’s contention that the same were not pleaded as required by Order 2 Rule 7 Civil Procedure Rules. The said Rule provides;-“Particulars in defamation actions [Order 2, rule 7](1)Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense.(2)Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.(3)Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his plaint give particulars of the facts on which he relies in support of the allegation of malice; but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he shall file a reply giving particulars of the facts and matters from which the malice is to be inferred.(4)This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant. 33.Order 2 Rule 7 (3) of the Civil Procedure Rules, is clear, that particulars of libel need not be specifically pleaded because they are contained in the written document written. Paragraph 11 of the plaint is therefore read with the objection. I find that the claim was properly pleaded. The question is whether defamation was proved. 34.At paragraph 11 of the plaint, it was pleaded that upon cancelation of the ceremony of 31/12/2016, many people understood the Respondents to be living an adulterous relationship and were not actually husband and wife. The Respondent called two (2) witnesses PW3 and PW4 who had known the Respondents for a long time. In cross examination of PW3, although she said it is PW1 who had a child with another woman, she then viewed PW2 as adulterous. It did not make sense. PW4 was made aware of PW1 having an affair with another woman but never regarded the Respondents as being adulterous. 35.They did not doubt that the Respondents were husband and wife. The cancellation of the ceremony did not seem to have affected their view of who the Respondents were, husband and wife. Further, it is a fact that the 1st Respondent has had children with the appellant during the subsistence of his marriage to the 2nd Respondent. He admitted that fact. Even if the 1st Respondent had been regarded as adulterous by members of public, it was not far from the truth. I find that the tort of defamation was not proved and the trial court erred in awarding damages for the same. 36.The trial court had issued a permanent injunction barring the appellant from interfering with the Respondent’s freedom of association and marital affairs. Because of the appellants conduct the said order is upheld. 37.In the end this court makes the following orders: -1.The appeal succeeds in regard to award of general damages of 50,000/=; the award is set aside.2.The rest of the appeal is dismissed with the appellant bearing half the costs.It is so ordered. DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 21ST DAY OF MAY, 2026HON. R.P.V. WENDOH.JUDGEJudgment read in the presence of:-Appellant - Ms. MufutuRespondent - Ms. NafulaJuma/Hellen- Court Assistants.