[2025] KEHC 3776 (KLR)

Dasani v Ochieng (Civil Case E005 of 2022) [2025] KEHC 3776 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3776 (KLR)

Republic of Kenya

In the High Court at Siaya

Civil Case E005 of 2022

DK Kemei, J

March 27, 2025

Between

Washington Bonyo Alias Dasani

Plaintiff

and

Michael Oduory Alias Mike Ochieng

Defendant

Judgment

1. The Plaintiff herein Washington Bonyo Alias Dasani filed a plaint dated 23/12/2022 seeking for the following reliefs:a.That the Defendant do make a full and unqualified apology and withdraw the statements published against the Plaintiff and such apology and withdrawal be given the widest possible circulation via the same media, the Defendant’s Facebook page.b.A permanent injunction be issued to restrain the Defendant either by themselves, servants, agents or otherwise howsoever from further making or publishing defamatory allegations against the Plaintiff.c.Both general and exemplary and/or aggravated damages.d.Costs of the suit.e.Interest on the (c) and (d) at the court rates.f.Such other or further relief as the court may deem just and fit to grant.

2. The Plaintiff’s claim against the Defendant is that the Defendant defamed him that the Defendant through social media platform – Facebook page with the name Mike Ochieng posted a photo of the Plaintiff’s work colleague and her husband captioned with the following defamatory words:“This is the lady with the husband both working in the Assembly and MCA Dassani has grabbed her. Her husband has asked me to expose this”“Chuore eseywakna ni akonye expose gini”the following words in Dholuo and English “the North Uyoma MCA Booker Dasani sani kawo Kshs200,000/= kuom, CECs nodhi kalogi e county assembly”The caption loosely translated in English mean;“The North Uyoma MCA Booker Dasani right now take Kshs.200,000/= from the CECs, so that the latter is vetted through the assembly.”The Plaintiff further avers that the above posts singularly and collectively, prima facie defamatory; that the aforesaid post was made on the internet consequently giving the same a global circulation. It was further averred that the offending publications were further circulated to other to other unquantifiable face book users by virtue of their being shared, quoted or liked onto other Facebook timelines; that the face book hosting website, facebook.com is accessible to anybody, world over, whether or not they have face book accounts; that the offending publications were, and are still accessible to anybody in the world with internet access; that the offending publications are still exhibited on the Defendant’s face book timeline and being circulated thus bringing ridicule, scorn and disdain on the Plaintiff; that the said words, as used by Defendant, in their ordinary meaning, and further by necessary imputation and innuendo, sufficiently induce any ordinary and reasonable right thinking members of the society to think ill of the Plaintiff and make it appear to them that the Plaintiff is promiscuous and immoral person that know no bounds.

3. The Plaintiff contends that the said words posted on Internet amounted to offending publication which was circulated to other face book users and that the natural and ordinary meaning of those words uttered by Defendant were meant and understood to mean; that Plaintiff is promiscuous, cannot settle in her marriage and an immoral person who has no conscience and should be shunned and avoided by all; that the Plaintiff is not a person of integrity; that the Plaintiff is of dubious character and is unfit to hold any public office; that the Plaintiff a fraudulent and corrupt person; that the Plaintiff is unethical and unscrupulous and that he engages in criminal and illegal activities.

4. The Defendant filed a defence dated 24/1/2023 wherein he denied the allegation and put the Plaintiff to strip proof thereof.

5. The matter proceeded to hearing on 25/7/2023 in the absence of Defendant who had been duly served with the hearing notice. The Plaintiff’s case relied on his witness statement dated 21/3/2023 which was inter alia; his name is Michael Ochieng Oduory and he lives and stay in Nairobi; that he personally don’t know the Plaintiff herein; he only know him as an MCA for North Uyoma; that he has no relations with him whatsoever; that this suit came as a surprise to him as he had never been in any contravention with the law; that he was just served with a demand letter and that is when he got to know who the Defendant was; that his official names are Michael Ochieng’ Oduory and not Mike Ochieng’; that he has never been or arrested in connection to this accusation and all he know is that the account used for defamation as alleged by the Plaintiff is not his, the comments made therein might have just been from a political rival but certainly not from him, as he do not hold any political city at whatever level in this country.

6. The Plaintiff closed his case. Several dates were issued but the Defendant failed to turn off the hearing thus his case was closed.

7. The Plaintiff filed submissions dated 11/8/2023. I have considered the evidence presented by the Plaintiff as well as the submissions filed. I find the issue for determination is whether the Plaintiff’s case has been proved against the Defendant on a balance of probabilities.

8. The Plaintiff’s suit is founded on the tort of defamation namely libel. It is trite law that a tort based on libel is actionable per se- damages would ordinarily be awarded without proof. The Plaintiff herein presented documentary evidence which comprised of social media (whatsupp) wherein the Defendant is claimed to have made defamatory allegations against the Plaintiff. Some of those defamatory words were as follows:“This is the lady with the husband both working in the Assembly and MCA Dassani has grabbed her. Her husband has asked me to expose this”“Chuore eseywakna ni akonye expose gini”the following words in Dholuo and English “the North Uyoma MCA Booker Dasani sani kawo Kshs200,000/= kuom, CECs nodhi kalogi e county assembly”The caption loosely translated in English mean;“The North Uyoma MCA Booker Dasani right now take Kshs.200,000/= from the CECs, so that the latter is vetted through the assembly.”

9. It is clear from the aforesaid defamatory words that the Plaintiff’s reputation and credit in the society has been severely damaged in the eyes of right-thinking citizens. Indeed, the Plaintiff enumerated the consequences of the said defamatory words as seen from the prism (lens) of the society where he resides and which were inter alia; that he is a promiscuous person who cannot settle in any marriage as well as an immoral person who has no conscience and who should be shunned and avoided at all costs; that he is not a person of integrity; that he is a person of dubious character and he is unfit to hold any public office; that he is a fraudulent and a corrupt person; that he is unethical and unscrupulous; that he engages in criminal and illegal activities. All these scenarios are really a mouthful which denotes that the Plaintiff is a person who should not be given even a second look by right thinking members of the society. The Plaintiff therefore has suffered great loss and damage to his reputation.

10. The evidence of the Plaintiff was not challenged by the Defendant who only entered appearance and filed a statement of defence but failed to present evidence so as to controvert the evidence of the Plaintiff. I find the Plaintiff’s evidence as uncontroverted. The documentary evidence left no doubt that indeed he had been defamed by the Defendant. The Defendant’s defence dated 24/1/2023 is just a mere denial and has not even pleaded a defence of justification to the alleged defamatory words. In the absence of such averment by the Defendant, the Plaintiff’s claim as pleaded stands proved. Further, the said documentary evidence presented by the Plaintiff has not been shaken at all by the Defendant who has offered no evidence in rebuttal.

11. The two issues for determination are firstly, whether the Defendant’s posts/publication concerning the Plaintiff were defamatory and secondly whether the Plaintiff is entitled to an award of damages.

12. As regards to the first issue, the Plaintiff was under obligation to present evidence which proves the ingredients of defamation inter alia; that the statement was defamatory; that the statement referred to him; that the statement was published by the Defendant; that the statement was false. A defamatory statement has been defined in Halsbury’s Law of England, as a statement which tend to lower a person in the estimation of the right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt ridicule to convey any imputation on him disparaging or injurious to him in office, profession, calling, trade or business. Again, in Phinehas Nyaga vs. Gitobu Imanyara [2013] eKLR it was held that defamation was not abut publication of falsehoods against a Plaintiff but rather, the Plaintiff must show that the published falsehood disparaged his reputation and lowered him in the estimation of right-thinking members of society generally.Thus, to prove defamation, the claimant must establish or demonstrate that the matter complained of was defamatory in nature, that the defamatory statement was uttered to someone else other than the person who was said to have been defamed and that the defamatory statement was published maliciously.In other words, the element 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. The words complained of must be shown to have injured the reputation, character or dignity of the Plaintiff. Abusive words may not be defamatory perse. The words must be shown to have been construed by an 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. In Anne Wairimu Njogu vs. Radio Africa Limited [2017] eKLR, it was held that malice also had to be inferred form the alleged defamatory statement. In addition, the defamatory words must be shown to have been published by the Defendant.That the Plaintiff herein has maintained that it is the Defendant who posted the defamatory words through whatsupp publication as follows:“this is the lady with the husband both working in the assembly and MCA Dasani has grabbed her. Her husband has asked me to expose her.”“Uyoma North MCA Booker Dasani right now takes Kshs2000,000/= from CECs so that the latter is vetted through the Assembly.”

13. The Plaintiff produced the screen shot of the photograph and the captioned words to support his claim. It is noted that the Defendant offered no evidence in rebuttal. This then leaves no doubt that the Defendant authored the said defamatory words and that the said words were read widely by several people. It is obvious that the said words being defamatory in nature has injured the reputation of the Plaintiff before his family and right-thinking members of the society. In the case of Miguna Miguna v Standard Group Limited & 4 Others [2017] eKLR, the Court of Appeal stated as follows regarding defamation, and I have no reason to differ, “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 right -thinking 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 to simply abusive. The burden of proving the defamatory nature of words is upon the Plaintiff. He must demonstrate that a reasonable man would not have understood the words otherwise than being defamatory. The law of defamation or more accurately, the law of libel and slander, is concerned with the protection of reputation: “A s general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbor. It supplies a temporal sanction…” Defamation protects a person’s reputation that is the estimation in which he is held by others; it does not protect a person’s opinion of himself nor his character. The law recognizes in every man false statement to his discredit and it affords redress against those who speak such defamatory falsehoods.”Looking at the defamatory words as published by the Defendant, it is clear that the same were meant to disparage the Plaintiff’s character, reputation and that the same has lowered him in the estimation of right-thinking members of the society and further exposed him to ridicule, contempt, public hatred and odium. That the said words conveyed must be seen using the prism of a reasonable person. It is not in doubt that reputation of a person is a vital asset which should be jealously guarded. If such reputation is besmirched, the same can damage an individual. In the case of Phineas Nyaga Vs. Gitobu Imanyara [2013] eKLR, Odunga J held that “evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts that may lead to an inference of malice. ..Malice may also be inferred from the relations between the parties.. the failure to inquire in the facts is a fact which inference of malice may be properly be drawn.Flowing from the foregoing, the act of the Defendant in posting the defamatory words to the Plaintiff’s workmates depicted nothing but malice and that the Defendant was reckless as he did not inquire into the truth or otherwise of the facts. I am therefore satisfied that the Plaintiff has proved on a balance of probability that the Defendant published the defamatory words which has injured his reputation of character.

14. As regards to the remaining issue, the Plaintiff has sought for an award of damages. As earlier noted, the tort of libel is actionable perse. Hence, the Plaintiff need not prove that he has suffered damages. In the case of Nation Media Group & Another v Hon. Chirau Ali Makwere C.A No. 224 of 2010 (UR), the Court of Appeal discussed in detail factors to consider in awarding damages for defamation. The Court cited Tunoi, J.A. in Johnson Evan Gicheru where guidelines in assessing damages were set out as stated in the case of Jones v. Pollard [1997] EMLR 233:1)The objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published, and any repetition.2)The subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself.3)Matter tending to mitigate damages, such as the publication of an apology.4)Matters tending to reduce damages.5)Vindication of the Plaintiff’s reputation past and future.

In the case of Wangeti Mwangi & Another v. J.P. Machira t/a Machira & Company Advocate [2012] eKLR in setting out additional guidelines the court stated as follows: “In addition, the award should also be geared where circumstances permit to act as deterrence so as to safeguard and protect societal values of human dignity, decency, privacy, free press and other fundamental rights and freedoms, including rights of others and personal responsibility without which life might not be worth living. The category of considerations will no doubt change as our societal needs change from time to time. In this regard, we think that courts must strive to strike a proper balance between the competing needs in the special circumstances of each case.The Court of Appel in the case of Johnson Evans Gichesru Vs. Andrew Morton & Another (2005) eKLR stated that, in action of libel, the trial court in assessing damages is entitled to look at the whole conduct of the Defendant from the time libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action and in court during the trial.It is noted that the Defendant upon being issued with a Demand Notice, failed to render an apology and to take out of publication the defamatory words. The Plaintiff was therefore entitled to approach the court for redress. The Defendant’s conduct was malicious as he has injured the reputation of the Plaintiff who is a member of the County Assembly of Siaya and a leader. In the case of Samuel Ndung’u Mukunya Vs. Nation Media Group Limited & Another [2015] eKLR, the Plaintiff who was an advocate of the High Court of Kenya was awarded a sum of Kshs20,000,000/= as general damages. I find that an award of Kshs. 20,000. 000/= as general damages to be adequate for the Plaintiff for both exemplary and aggravated damages. 15. In the result, judgment is entered for the Plaintiff as against the Defendant as follows:a)That the Defendant do make a full and unqualified apology and withdraw the statement published against the Plaintiff and such apology and withdrawal be given the widest possible circulation via the same media, the Defendant’s face book page.b)A permanent injunction be issued to restrain the Defendant either by themselves, servants, agents or otherwise howsoever from further making or publishing the defamatory allegations against the Plaintiff.c)An award of Kshs 20,000,000/= for both general, exemplary and or aggravated damages.d)Costs of the suit.

DATED AND DELIVERED AT SIAYA THIS 27TH DAY OF MARCH, 2025. D. KEMEIJUDGEIn the presence of:Felix Okech……….…for PlaintiffN/A for Michael Oduory Alias Mike Ochieng…… DefendantMboya…….Court AssistantSIAYA HC CIVIL CASE NO. E005 OF 2022 JUDGMENT 4 | Page