Angwenyi v Ethics and Anti-Corruption Commission & another (Civil Case E100 of 2022) [2026] KEHC 8598 (KLR) (Civ) (18 June 2026) (Judgment)

Angwenyi v Ethics and Anti-Corruption Commission & another (Civil Case E100 of 2022) [2026] KEHC 8598 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8598 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E100 of 2022 JN Mulwa, J June 18, 2026 Between Hon Jimmy Nuru Angwenyi Plaintiff and The Ethics and Anti-Corruption Commission 1st Defendant Nation Media Group 2nd Defendant Judgment Pleadings 1.By a Plaint dated 10/06/2022, Hon. Jimmy Nuru Angwenyi (hereafter the Plaintiff) sued The Ethics and Anti-Corruption Commission (EACC) and Nation Media Group (hereafter the 1st & 2nd Defendants) for alleged defamation and sought judgment against them by way of:a.An order of permanent injunction to restrain the 1st and 2nd Defendants from further publishing, discussing, writing or circulating the words referred to in plaint or similar words defamatory of the Plaintiffb.A declaration that the Plaintiff is entitled to a retraction of the defamatory words and a suitable worded apology in the widest possible circulation similar to the publication.c.Damages for defamation Compensatory damages, Exemplary damages, Aggravated damages & Interest on the aforestated at Court rates.d.Costs of the suit.e.Any other or further relief that this honorable Court may deem fit and just to grant. 2.The Plaintiff avers that at all material times relevant to the suit, he was the longest serving Member of the National Assembly and the then Member of Parliament (MP) for Kitutu Chache North Constituency, vying to retain his seat. That on 02/06/2022 at Pg. 13 of the “Daily Nation”, the 2nd Defendant falsely, maliciously, contemptuously and disparagingly published or caused to be published words of and concerning of the Plaintiff in their widely circulated newspaper, as follows-;“Out of the 58 MP aspirants who should be barred from vying, some of the big names are Oscar Sudi (Kapseret), Alfred Keter (Nandi Hills), John Walukwe (Sirisia), Busia Governor Sospeter Ojamong, Jimmy Angwenyi (Kitutu Chache North), Machakos Governor Alfred Mutua, Vincent Tuwei (Mosop), Samuel Arama (Nakuru West), James Gakuya (Embakasi North) among others”“Mr. Angwenyi is accused with counts relating to fraudulent acquisition of a piece of land in Kakamega” 3.It was averred that the said words as published by the Defendants and shared widely online, in their ordinary and natural meaning or by necessary innuendo were intended to mean of and concerning Plaintiff that he was corrupt, engaged in fraudulent dealings, unfairly used his position to fraudulently acquire land, dishonest immoral, unfit to be an aspirant for Member of Parliament or hold public office and thus should be shunned by all right-thinking members of the public. 4.That the publication was false whereas upon managing to access the report by the 1st Defendant sent to the Independent Electoral and Boundaries Commission (IEBC), the said report contained his name on purported allegations that he is facing criminal charges related to land fraud in a case before the Kakamega Environment and Land Court (ELC). 5.The Plaintiff goes on to aver that the words published and circulated by the Defendants were false in material, malicious, circulated to defame, disparage, malign and denigrate his character meanwhile provided fodder to his political opponents during ongoing campaigns, for which he seeks damages on account of the loss, disrepute, odium, mental pain & suffering occasioned by the said publication. 6.The 1st Defendant filed a statement of defence dated 09/02/2023 denying the key averments in the plaint meanwhile averred that it had no control of what and how the 2nd Defendant decided to publish the impugned article in question. It went on to aver that the 1st Defendant is established and mandated to enforce Chapter Six of the Constitution and in the context of elections, to inquire into the eligibility of candidates presenting themselves for elective positions to enable the IEBC discharge its mandate under Article 88(4)(f) & 99(1)(b) of the Constitution and Section 13(1) of the Leadership and Integrity Act. 7.It was further averred that despite the initial report to the IEBC capturing the Plaintiff as an aspirant has been “charged” in Court in Kakamega relating to fraudulent acquisition of land, its subsequent report to the IEBC rectified the grammatical error to read that the Plaintiff-Aspirant is a “defendant” in Court relating to fraudulent acquisition of land, to wit, the latter is true in fact. 8.That the use of the word “charged” and “count” in its report to the IEBC was not malicious whereas the fact still sustains that the Plaintiff remains a party in a case in Kakamega law court relating to fraudulent acquisition of public property. The 1st Defendant went on to aver that the it did not publish or circulate any defamatory words and the Integrity Verification Report was addressed to the IEBC, that it cannot be faulted for discharging its constitutional and statutory mandate. 9.The 2nd Defendant filed its statement of defence dated 08/06/2023 admitting to publication of the impugned article however denied the key averments in the plaint. It was further averred that sometime in 2022 leading up to the General Elections, the 2nd Defendant encountered an Integrity Report issued by the 1st Defendant to the IEBC. That the information contained therein raised matters of general public importance touching on integrity of persons seeking elective positions, that the 2nd Defendant as a responsible media house was under a constitutional duty to bring it to the attention of the general public. 10.The 2nd Defendant went on to state that the publication of the contents of the article complained of was justified, published on occasion of qualified privilege and a fair commentary on a matter of public importance, whereas, it was based on a true and accurate account of events set out in the said report by the 1st Defendant. 11.It was equally averred that the publication was a reproduction of a report issued by the 1st Defendant, as a competent government agency, to wit, the same was only intended to inform the general public, published without malice or ill will with no intent to malign the Plaintiff, as alleged. That in the alternative and without prejudice to the aforestated, the media is afforded constitutional protection while discharging its mandate of informing the public which supersedes any private rights that may have been affected by the said publication. 12.The suit proceeded to full hearing during which the parties called evidence in support of the averments in their respective pleadings. Plaintiff’s Case and Evidence 13.Hon. Jimmy Nuru Angwenyi, testified as PW1. He identified himself as a farmer and chairperson of the Heroes Council. He proceeded to adopt his witness statement dated 10/06/2022 as his evidence in chief and adduced into evidence the bundle of documents appearing in his list of documents dated 10/06/2022 as Pexh.1 – 4. It was his evidence that he was an MP for twenty-three (23) years and during the said period he had no issue with the law. 14.That he was shocked to see his photo on the front page of the 2nd Defendants newspaper, capturing therein that he had fraudulently acquired a piece of land in Kakamega. He went on to state that people called him to inquire whether he was a fraudster. That some of his supporters also inquired as to the issue, all the while, the same took place during the campaign period. He further stated that his opponents started using the article against him during the campaign period therefore the Court ought to allow the suit as filed. 15.Under cross examination, the Plaintiff confirmed having been cleared by both IEBC and EACC to run as a Member of Parliament for Kitutu Chache North Constituency. It was his evidence that EACC investigated and lodged a case at Kakamega ELC, over alleged fraudulent acquisition of land however the case had never been settled and is still pending determination in court. That the publication was of public interest and in the public domain over facts that had not been established. He equally confirmed that the report by EACC did not attach his photograph whereas an election is a competitive process. 16.He also stated that the article was in part lifted from the EACC report, that the same was correct in respect of the names mentioned in the report therein. He concluded by stating that he had no evidence with respect to his opponents using the article. 17.In re-examination, he repeated that he was cleared to run for Member of Parliament in 2022 despite the ongoing case in Kakamega Law Courts. When people heard of the case against him, the assumption was that it was a criminal matter. 18.Joshua Obonyo Nyariki, testified as PW2. He identified himself as a registered voter in Kegogi Ward, Kitutu Chache North Constituency whereinafter he proceeded to adopt his witness statement dated 14/03/2024 as his evidence in chief. He testified that knew the Plaintiff as the former MP of Kitutu Chache North Constituency and that he remembers the impugned publication, which had the picture of the Plaintiff alongside it, purporting that he had stolen a parcel of land in Kakamega. It was his evidence that the publication affected the voting during the 2022 general elections given that he was his main agent. He concluded by stating that he did vote for the Plaintiff after seeing the impugned publication. 19.On cross-examination, PW2 stated that he did not adduce any material before Court evincing being a voter in Kitutu Chache North Constituency or the being the Plaintiff’s chief agent. Having failed to vote for the Plaintiff he voted for another candidate who was declared the eventual winner of the contest. He still thinks that the Plaintiff is a fraudster. While being referred to the impugned article, he confirmed that it does not expressly capture that the Plaintiff is a fraud. 20.In re-examination, he stated that if the Plaintiff was to vie for member of parliament again, he would not vote for him given his questionable reputation. 21.Richard Ogamba testified as PW3. He began by identifying himself as a businessman and proceeded to adopt his witness statement dated 14/03/2024. He too confirmed having known the Plaintiff as a member of parliament and that he was a voter within Kitutu Chache North Constituency. He confirmed having seen the impugned article concerning the Plaintiff’s purported fraudulent acquisition of land in Kakamega. That he immediately changed his mind about voting for the Plaintiff and would not vote for him, even if he vied again, without prior clearance of his name by the Courts. 22.On cross-examination, he too confirmed not having any material evidence that he is a voter in Kitutu Chache North Constituency. He stated that having seen the article in the Nations Newspaper, his son read out the contents to him, meanwhile stated that it was the Plaintiff’s counsel that prepared his witness statement however confirmed having signed it. He stated that he had never met the Plaintiff whereas he had in earlier elections voted for the Plaintiff as a man of integrity though the publication dissuaded him from voting for the Plaintiff. He was categorical that he would not vote for a thief whereas his evidence was premised on his prior civic duties in favour of the Plaintiff, and the latter’s counsel request to testify. 23.Daniel Arori, testified as PW4. He began identifying himself as a farmer and proceeded to adopt his witness statement dated 14/03/2024 as his evidence in chief. He too confirmed having known the Plaintiff as a former Member of Parliament for Kitutu Chache North. It was his evidence that he had not read the article himself but was told of what was written in the impugned article. That on the premise of the latter he changed his opinion of the Plaintiff if he vied again he would not vote for him. 24.On cross-examination, likewise to PW2 and PW3, he confirmed being a voter in Kitutu Chache however did not evince any material before Court. Similarly, on his part, he did not actually read the impugned article, despite stating it in his witness statement, though he stated that he was shown the same. It was his evidence that he was unaware of the case between the Plaintiff and EACC nevertheless believed that he was a thief. He too confirmed that it was Plaintiff’s counsel that requested him to record a witness statement in the matter. 1st Defendant's Case and Evidence 25.Emily Ibeere testified as DW1. She identified herself as an Assistant Director Ethics & Compliance at the 1st Defendant and proceeded to adopt her witness statement dated 09/02/2023 as her evidence in chief, She adduced into evidence the documents appearing in the 1st Defendant list of documents of even date as 1st Defendant’s Dexh.1 – 8. It was her evidence that the 1st Defendant first submitted its report to IEBC on 31/05/2022 with an update to the same issuing five (5) days later, on 06/06/2022. That in the said report, it did not capture the word “criminal” however the Plaintiff had been sued before a Kakamega Court in respect of a case involving fraudulent acquisition of land, which matter is still pending before Court. She went on to state that the commission had carried out investigations and established that the Plaintiff had acquired property fraudulently and therefore their report was not premised on malice. 26.On cross-examination, DW1 stated that the 2nd report was to rectify some errors in the 1st report. It was her evidence that the former report read that the Plaintiff was charged before an ELC Court, that what came to mind was that the Plaintiff had a criminal case pending before Court. That the 2nd Defendant proceeded to publish the aforestated, as is, however in the 2nd report, the information was corrected to reflect that the Plaintiff was a defendant in the suit. 27.That the corrected report was sent to IEBC as mandated by law, and was not issued to the public. She maintained that the 1st Defendant is mandated to investigate complaints by the public. She testified that the case is still pending before the Court. She further stated that the purpose of the report was to aid IEBC verify aspirants, and concluded by confirming that the initial report captured the Plaintiff as an accused before a clarification was done. 28.In re-examination, while being referred to the 1st report to the IEBC, she confirmed that, to a layman the information captured therein meant that the Plaintiff had a pending case in Court concerning fraudulent acquisition of land. However, she maintained that the EACC did not send its report to the media but only to the IEBC to allow it to verify candidates. That the updated report in June was to rectify the words as earlier published and to indicate that the Plaintiff was a Defendant in a case,and that the report was published without malice. 2nd Defendant’s Case and Evidence 29.Sekou Owino testified as DW2. He identified himself as an Advocate of the High Court of Kenya and an employee of the 2nd Defendant, and proceeded to adopt his witness statement dated 19/07/2024 as his evidence in chief and adduced into evidence the documents appearing in the 2nd Defendant’s list of documents dated 25/07/2024 as 2nd Defendant’s Dexh.1. It was his evidence that the 2nd Defendant was not obligated to verify the report of the EACC regarding a matter that was in Court. That the 2nd Defendant published two (2) articles one on 02/06/2022 and 10/06/2022, adding that 2022 was an election year, that it was a matter of public interest there being claims and counterclaims as to eligibility of several aspirants. 30.On cross-examination, he stated that the report was obtained by reporters from EACC and other sources. It was his opinion that verification of information or news was dependent on where such information is contained in a report from agencies so there was no need to verify. He stated that the 2nd Defendant was not aware of the 2nd report as publication on 02/06/2022, and that the said article was for the general public consumption. 31.He went on to state that he was unaware from where the reporter obtained the said information however to the best of his recollection the report was prepared by the 1st Defendant concerning the integrity of the Plaintiff and other aspirants. Being referred to the Plaintiff’s bundle of documents it was his evidence that the impugned article was true given that the Plaintiff was captured as the 1st Defendant in the case before Kakamega Law Courts whereas the cause of action therein was founded on illegality and fraud. 32.He conceded that there were no criminal charges preferred against the Plaintiff whereas criminal charges being preferred meant an entirely different thing. That the EACC recommendations in its report were not false, whereas the impugned publication was on account of privilege. He stated that he only became aware of the 2nd report after the filing of the instant suit, whereas the EACC recommendations in the said report were not materially different from the suit filed against the Plaintiff in Kakamega Law court. 33.In re-examination, he maintained that amendments to the report were only made after the 2nd Defendant had already carried out the publication on 02/06/2022, that the same was not in the knowledge of the 2nd Defendant. 34.At the close of the trial, directions were taken on filing of submissions. The parties duly complied. Plaintiff’s Submissions 35.Counsel for the Plaintiff began his submissions by setting out a brief history of the matter and evidence tendered before the Court, and condensed his submissions into three (3) cogent issues for the Court’s determination. On whether the publication by the Defendants was defamatory, counsel relied on Black’s Law Dictionary Tenth Edition at Pg. 506, the provisions of Article 162(2)(b) of the Constitution, the decisions in Joseph Njogu Kamunge v Charles Muriuki Gacheri [2016] eKLR, David Kirui v Tonny Ketter [2019] KEHC 1124 (KLR) and Machira v Mwangi & another [2001] KEHC 822 (KLR) to posit that the publication was defamatory because the Defendants falsely portrayed the Plaintiff as a person facing criminal charges relating to fraudulent acquisition of land thereby lowering his reputation before right thinking members of society. 36.It was submitted that the 1st Defendant’s report stated that the Plaintiff had been “charged” whereafter the report was shared with IEBC and republished by the 2nd Defendant on 02/06/2022. Given that the Environment and Land Court lacks criminal jurisdiction, the assertion that the Plaintiff was “charged” was manifestly false whereas the Defendants knew or ought to have known that the ELC does not hear criminal matters. Counsel went on to argue that the natural and ordinary meaning of the publication as understood by PW2, PW3 & PW4, portrayed the Plaintiff as being a criminal, dishonest, corrupt, immoral and unfit to hold public office. 37.Counsel equally argued that publication of the report and impugned article was actuated by malice as the Defendants failed to verify the true nature of the proceedings before the ELC in Kakamega; published allegations of criminal conduct without due inquiry; used the word “charged” to describe civil proceedings; published the impugned publications during the 2022 election campaign period; failed to correct or retract the publication after discovering the error; failed to seek a comment from the Plaintiff prior to publication; and failed to apologize even after receipt of a demand letter. 38.It was further posited that by dint of DW1’s evidence concerning rectification of its 1st report and its failure to communicate the correction to the 2nd Defendant or seek publication of a correction or retraction, the aforestated amounted to an admission of error, which conduct, demonstrates recklessness. Meanwhile, citing The Code of Conduct for Practice of Journalism, counsel posited that the latter obligated the 2nd Defendant to verify the accuracy and balance its reporting. That DW2 having admitted failure to verify the information or seek clarification from either the 1st Defendant or the Plaintiff, the aforestated was evidence of recklessness and lack of professional due diligence. In summation, it was posited that in the totality of the above, the Court ought to find that the Plaintiff proved the ingredients of defamation. 39.On whether the Plaintiff suffered injury and is entitled to the reliefs sought, counsel posited that PW2, PW3 & PW4 perception of the Plaintiff changed after reading the publication; that the Plaintiff continues to suffer public disrepute, odium & emotional distress; and that the Plaintiff’s electoral defeat in 2022 elections was as a direct consequence of the Defendants publication. 40.In urging an unspecified amount on general damages, counsel called to aid the decisions in Raphael Kitur v The People Media Group Limited T/A The People [2017] KEHC 1643 (KLR), Wangeti Mwangi & Another v. J.P. Machira t/a Machira & Company Advocate [2012] eKLR, Musikari Kombo v Kenya Broadcasting Corporation [2017] KEHC 7870 (KLR) and Hon. Christopher Obure -vs- Tom Oscar Alwaka & 3 others H.C.C.C. no. 956 of 2003 wherein the Courts had awarded general damages for defamation ranging from as low as Kshs. 4,000,000/- and upwards of 15,000,000/-. In conclusion, the Court was urged to allow the suit as lodged. 1st Defendant’s Submission 41.On the part of the 1st Defendant, counsel equally began by setting out in brief the events leading hereto whereafter she proceeded to condense her submissions into four (4) cogent issues. On whether the Integrity Verification Report to IEBC constituted qualified privilege, counsel relied on Article 79 of the Constitution, Section 7(1) of the Defamation Act, the Leadership & Integrity Act, the decisions in Jeff Otieno & 2 Others Group v Martin Ng’ang’a [2019] eKLR, Ezekiel Oduk v Nation Media Group Limited [2021] eKLR, Charles Katiambo Musugu v Dorine Lusweti [2021] eKLR, Francis Chereno Ngeny & 11 Others v Sammy Kiprono [2017] eKLR to summarily submit that the said report cannot be the basis of a claim founded on defamation as it was lawful, privileged and made pursuant to public duty and interest. That the report was made pursuant to a legal duty imposed by law, was done in good faith within the scope of 1st Defendant’s statutory obligation meanwhile was not malicious, reckless or actuated by malice. 42.Submitting on whether the report was defamatory, counsel relied on James Njagi Joel v Junius Nyaga Joel [2020] eKLR, Dorcas Florence Kombo v Royal Media Services [2014] eKLR, Phinehas Nyagah v Gitobu Imanyara [2013] eKLR and Wilfred Nyaundi Konosi v Standard Group Limited & Another [2022] eKLR to posit that the Plaintiff confirmed that there was indeed a suit pending before the Kakamega Law Court against the Plaintiff meanwhile iterated that in issuance of the said report, the 1st Defendant was discharging its obligation and duty to the public hence no demonstration of malice. That notwithstanding the use of the words “charged and count” the use was neither beyond nor disproportionate to the facts in question, that the Plaintiff failed to prove the falsity of the report given the ongoing case before Kakamega Law Court. Counsel emphasized that the Plaintiff has not demonstrated any malice on the part of the 1st Defendant in respect of the report complained of, that the Plaintiff failed to prove the constituent ingredients of defamation as against the 1st Defendant. 43.Concerning the credibility of the Plaintiff’s witness, counsel posited that PW2’s evidence was contradictory and lacked the requisite independence to lend credibility to the evidence before this Court. With respect of PW3’s, counsel summarily posited that his evidence was weak and unreliable given that his understanding of the impugned article was based on a translation by his son rather than a direct reading therefore raising question as to the accuracy of his evidence. Weakness and unreliability of evidence was equally attributed to PW4’s testimony and that both PW3’s & PW4’s evidence was all at the behest of the Plaintiff’s counsel and thus lacked any probative value. 44.Finally, on whether the Plaintiff is entitled to the relief’s sought, counsel submitted that Section 29(1) of the EACC Act enjoins the 1st Defendant to publish and publicize important information within its mandate. That the Plaintiff is not entitled to any injunction reliefs, compensatory damages given the aforestated and the fact that the Plaintiff failed to prove his case on a balance of probabilities. In conclusion the Court was urged to dismiss the suit with costs. 2 nd Defendant’s Submission 45.On the part of the 2nd Defendant, counsel likewise began by stating a brief history of the matter while condensing his submissions into three (3) cogent issues. Submitting on whether the article complained of was defamatory, referred to the Plaintiff, published by the Defendant and was false, counsel relied on Gatley on Libel and Slander 6th Edition at Pg 6, Musikari Kombo (supra), Gatangi v Kungutia [2022] KEHC 10596 (KLR), Gladys Chemutai Biebei v Barclays Bank of Kenya Limited [2007] eKLR, Jean Njeri Kamau v Association of Action Aid International & 2 others [2020] eKLR, Wycliffe A. Swanya v Toyota East Africa Ltd & Another [2009] eKLR, Francis Cherono Ngeny & 11 others v Sammy Kiprop Kilach [2017] eKLR, J. Kudwoli & Another v. Eureka Educational & Training Consultants & 2 others [1993] eKLR and Jeremy Agare Dadoh v Ndugu Transport Company Limited [2013] eKLR to posit-; that the Plaintiff failed to plead or particularize the defamatory words complained of; that the article accurately reflected the 1st Defendant’s report; that the Plaintiff is a party in the Kakamega case therefore the Plaintiff failed to prove that the article was defamatory of him. 46.It was further submitted that upon cross examination of PW2, PW3 & PW4, it was established that the witness statements were prepared by Plaintiff’s counsel, they had no political association with the Plaintiff, their testimony was premised on hearsay, they attributed allegations to the publication which were not actually contained in the article whereas there was no evidence showing that voters rejected the Plaintiff on the premise of the article. Therefore, the Plaintiff failed to demonstrate that the impugned article lowered his estimation before right thinking members of society. 47.Counsel went on to posit that the Plaintiff finished second, that electoral outcome depends on other vitiating factors, that the Plaintiff was cleared by IEBC therefore he failed to demonstrate that the publication was defamatory. In any event, the publication was not actuated by malice as the report was pursuant to the 1st Defendant’s statutory duty, concerned a matter of public interest, whereas there existed no prior relationship between the parties. 48.Submitting on whether the 2nd Defendant had lawful grounds of publishing the impugned article, while calling Section 6 & 14 of the Defamation Act, Evans Kidero v John Kamau & another [2017] eKLR, David Chege Mwangi v Mugambo Wa Gachocho Co. Limited [2010] eKLR, Angwenyi v Ethics & Anti- Corruption Commission & another [2023] KEHC 18641, Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR Onyango v Standard Group Limited & 4 others [2024] KECA 118 (KLR) and Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Parties) [2022] KEHC 3209 (KLR) it was submitted that the publication was truthful and justified whereas the impugned article merely reported allegations already contained in the 1st Defendant’s report and Court proceedings. That the 2nd Defendant had a constitutional duty under Article 34 of Constitution to inform the public on the integrity of candidates premised on information supplied by EACC which was a fair comment reporting on matters of public interest and judicial proceedings therefore privileged. 49.On whether the Plaintiff is entitled to the reliefs sought, while placing reliance on the of-cited decision in Jones vs. Pollard [1997] EMLR 233 at 243 as quoted in Johnson Evan Gicheru vs. Andrew Morton & Another C.A. No. 314 of 2000, counsel argued that the Plaintiff failed to prove that the impugned publication was defamatory, occasioned reputational injury, and was malicious, the impugned publication was truthful and on account of privilege. Therefore, the Plaintiff is not entitled to any award on damages. 50.On exemplary and aggravated damages, it was submitted that the publication was merely a report on a matter already in the public domain, based on a report by the 1st Defendant, was not for profit, meanwhile no outrageous conduct was demonstrated on the part of the 2nd Defendant. Consequently, an award of exemplary and aggravated damages is not available to the Plaintiff, citing the decision in Ezekiel Oduk (supra) and Ndungu Njoroge and Kwach Advocates & another v Standard Limited & 2 others [2012] KEHC 1404 (KLR) was relied on in respect of the aforestated. In summation the Court was urged to dismiss the suit with costs. Analysis and Determination 51.The Court has carefully considered the respective parties’ pleadings, the evidence adduced by respective witness, and the parties' written submissions as well as authorities relied in support thereof and deductively crystallizes the following issues for determination-:a.Whether the Plaintiff has made out a case for defamation against the Defendants?b.Whether the defence of qualified privilege, truth and fair comment are available to the Defendants? andc.Whether the Plaintiff is entitled to an award of damages, and if so, the quantum. Whether the Plaintiff has made out a case for defamation and whether the defence of qualified privilege, truth and fair comment are available to the Defendants? 52.In so far as the tort of defamation is concerned, the rationale behind the law of defamation was spelt out by the Court of Appeal in Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR), wherein it was stated that;“The law of defamation is concerned with the protection of a person’s reputation. Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25.1 expressed himself in the following manner:“The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: 'As a general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporary 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 a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit' and it affords redress against those who speak such defamatory falsehoods…” 53.Further, according to Black’s Law Dictionary, 9th Edition at Pg. 479 defamation is defined as:“The act of harming the reputation of another by making a false statement to a third person.” 54.It must also be remembered that when it concerns the tort of defamation, there exists competition between the private and public interest. The current constitutional dispensation at Article 33(1) guarantees the freedom of expression by way of seeking, receiving or imparting information. Corollary to the forestated, is Sub-Article (3) which provides that in exercise of the right of freedom of expression, every person shall respect the rights and reputation of others. 55.As rightly pleaded by the 2nd Defendant, Article 34 guarantees the freedom of the media whereas 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. 56.That said, considering these competing rights Lord Denning MR stated in English Case of Fraser v Evans & Others [1969] 1 ALL ER 8; -“The right of speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise it without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed.” 57.The Court of Appeal in the case of Swanya v Toyota East Africa Ltd & another [2009] KECA 379 (KLR) rendered that in a suit founded on defamation the plaintiff must prove the following elements -:i.That the matter of which the plaintiff complains is defamatory in character.ii.That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.iii.That it was published maliciously.iv.In slander, subject to certain exceptions, the plaintiff has suffered special damage. 58.Additionally, the Court of Appeal in Patani & another v Patani [2019] KECA 480 (KLR) while addressing itself to the purport of the law of defamation stated that: -“In rehashing, we note the ingredients of defamation were summarized in the case of John Ward v Standard Ltd. HCC 1062 of 2005 as follows: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.” 59.However, before addressing myself to the ingredients set out in set out in Patani (supra), it necessitates for purpose of good order to state the following; as earlier captured in this judgment, the centrality of the Plaintiff’s grievance relates to the 2nd Defendant’s publication dated 02/06/2022. I equally note that forming part of the Plaintiff’s evidence, as Pexh.4, he adduced a publication by the 2nd Defendant published on 10/06/2022. The 2nd Defendant has made heavy weather vide its submissions that the Plaintiff did not plead any cause of action in respect of the article dated 10/06/2022. 60.It is since settled and as observed in the case of Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2 EA 385, that the issues for determination in a suit generally flow from the pleadings and a trial Court can only pronounce judgement on the issues arising from the pleadings or such issues as the parties framed for determination. 61.Here, what has been pleaded for consideration by the Plaintiff, is the impugned publication of 02/06/2022. Therefore, while the 2nd Defendant’s concern over the publication dated 10/06/2022 is merited, it is inconsequential, given that parties are bound by their pleading, the scope of this Court’s interrogation is limited only to the publication of 02/06/2022. 62.That said, moving on to the kernel of the matter, it trite that the ingredients set out in Patani (supra) are sequential hurdles; all must successively be met in order for one to succeed in a claim premised on defamation. In this case, the 1st Defendant denies and contests all the aforestated ingredients. Meanwhile, as concerns the 2nd Defendant, ingredients (ii) & (iii) above have not been contested, as the 2nd Defendants readily admit at Paragraph 4 of its statement of defence to publishing the words. 63.Therefore, the two (2) issues in dispute and to be considered simultaneously with respect to the Defendants are whether the impugned publications were defamatory and or false? whether the defence advanced by the Defendants is tenable? And whether the cause of action can be sustained as against the 1st Defendant? 64.It is not in dispute that the 2nd Defendant ran a publication in the “Daily Nation” on 02/06/2022 titled “Anti graft agency release list of aspirants it wants barred from polls” which mentioned the Plaintiff by name. At the time of publication, the Plaintiff who testified as PW1, was purportedly the longest serving Member of the National Assembly and the then Member of Parliament (MP) for Kitutu Chache North Constituency, vying to retain his seat. It was his evidence that he was shocked to see the newspaper capturing that he had fraudulently acquired a piece of land in Kakamega, that people called him to inquire whether he was a fraudster. 65.That said, the relevant facet of the impugned article complained about, was captured earlier in this judgment and as a consequence requires no restatement at this point. 66.Though, what this Court garners to be the Plaintiff’s case is that the publication of 02/06/2022 was defamatory because the Defendants falsely portrayed the Plaintiff as a person facing criminal charges relating to fraudulent acquisition of a property thus lowering his estimation before right thinking members of society. 67.Particularly, as against the 1st Defendant, the Plaintiff contends that its report to the IEBC captured that he was facing criminal charges related to land fraud in Kakamega ELC Court therefore the words published by the Defendants generally had the effect of defaming and disparaging the Plaintiff. 68.At the onset, I believe it necessary that I de-link and delineate the Plaintiff’s cause of action as against the respective Defendants, so as not to conflate issue(s) later in this judgment. 69.The impugned publication that is the subject matter of this suit was published at the precipice of the 2022 General Elections. Admittedly, the Plaintiff confirms that at the time he was the then serving Member of Parliament (MP) for Kitutu Chache North Constituency and was vying to retain his seat. 70.The Plaintiff having advanced and or subjected himself as a prospective candidate for election, in respect of Kitutu Chache North Constituency seat, by dint of Article 88(4)(f) of the Constitution, the IEBC is mandated to register the Plaintiff and like aspirants for elections. And as rightly pleaded by the 1st Defendant, the IEBC in carrying out its mandate must ensure that an aspirant such as the Plaintiff satisfies the educational, moral and ethical requirements prescribed by the Constitution or an Act of Parliament pursuant to Article 99(1)(b) of the Constitution. 71.That said, it is not in dispute that the 1st Defendant is a creature of Article 79 of the Constitution as read alongside Section 3 of the Ethics & Anti-Corruption Commission Act, with its functions and powers provided for under Section 3(2), 11 & 13 of the Act. It goes without saying, given the reading of Article 79, that 1st Defendant is therefore bastion of Chapter Six of the Constitution and related statutes, such as, The Elections Act, The Public Officers Ethics Act, The Leadership and Integrity Act, The Anti-Corruption & Economic Crimes Act, concerning and or pertained to the issues, questions and qualification under Chapter Six of the Constitution. 72.As earlier noted, the 1st Defendant neither authored and or published the impugned article dated 02/06/2022 that is at the heart of the instant matter. By the Plaintiff’s pleadings and evidence before this Court, the 1st Defendant published a report dated 31/05/2022 capturing that the Plaintiff was facing criminal charges relating to land fraud. The Plaintiff does not plead the said particulars of the aforestated fraud, however maintains it is the said report that forms the essence of the 2nd Defendant’s publication. 73.At the hearing, DW1, acceded that indeed the 1st Defendant published the report in question dated 31/05/2022- DW1-Dech.2. And goings by Pexh.2 at Pg. 58 – Item 13 thereof, it captured that the Plaintiff “…Aspirant was charged in Kakamega ELC Court vide Case No. 906 of 2018 which counts relating to the fraudulent acquisition of parcel of land…..” 74.Notably, the report was explicitly addressed to the 1st Defendant and not the 2nd Defendant. Later, on 06/06/2022 the 1st Defendant issued an update of its report, produced as DW1-Dexh.3, - Item 11. It goes on to rectify and or clarify that the Plaintiff “Aspirant is a defendant in Environment and Land Court (ELC) vide Case No. 906 of 2018. This is a case relating to fraudulent acquisition of parcel of public land………and is pending before Court” 75.In my estimation and as rightly argued by the Plaintiff’s, it would seem that 2nd Defendant proceeded to carry and report on the 1st Defendant’s initial report dated 31/05/2022 via the impugned publication on 02/06/2022.Admittedly, DW2, confirmed that the 1st Defendant’s report was obtained from EACC itself and other sources and that the 2nd Defendant was not obligated to verify the report of the EACC. 76.This brings me to the question whether a claim as against the 1st Defendant is sustainable on the premise of the aforestated discussion?Here, I must reiterate that the issues for determination in a suit generally flow from the pleadings and a trial Court can only pronounce judgment on the issues arising from the pleadings.As earlier noted, the cause of action concerns the impugned article published by the 2nd Defendant on 02/06/2022 and not the 1st Defendant’s report of 31/05/2022. 77.Had the 1st Defendant’s report been the subject of the Plaintiff’s complaint, it is trite that what is set out in the plaint, the specific words referring to him that he considers were defamatory, as mandated in Order 2 Rule 7 of the Civil Procedure Rules (CPR) and exhortation in Onchieku v Kwayera & another [2025] KECA 520 (KLR), he did not in this matter whereas the 1st Defendant was not the author of the impugned publication dated 02/06/2022.In any event, the 1st Defendant was carrying out its legal, moral or social obligation when it prepared its 1st report and subsequent report, explicitly published to the IEBC and not to all and sundry. 78.For argument's sake, had the first report been published to the general public and or, any other person other than IEBC, it would have had a defamatory effect, the Plaintiff ought to have particularized his claim as against the 1st Defendant.As is, given the ingredients set out in Patani (supra), I reasonably believe that a claim as against the 1st Defendant is not sustainable in the circumstance, even without having to delve in the merits of the 1st Defendant’s defence to the Plaintiff’s claim. 79.Moving onto the cause of action against the 2nd Defendant, notably, the article, adduced as Pexh.1, employed varied choices of words and phrases starting with the title that captioned “Anti – graft agency release list of aspirants it wants barred from polls”. It went on to capture in part that “The Anti-graft body now wants the electoral agency” “EACC wants” “The Agency says” “EACC says” “Out of 58 MP aspirants who should be barred from vying”, “Mr. Agwenyi is accused with counts of fraudulent acquisition of a piece of land in Kakamega”. 80.My understanding of the publication in its entirety and as particularly relates to the Plaintiff is that the 2nd Defendant was reporting on the workings of the EACC and particularly concerning a list prepared by the 1st Defendant on reasons why various political aspirants ought to be barred from the 2022 polls. 81.As concerns the Plaintiff, the 2nd Defendant reported that it was EACC’s position that the Plaintiff was accused with counts relating to the fraudulent acquisition of a piece of land in Kakamega.Principally, the wording and language employed by the publication, the 2nd Defendant appears to position it as a fact, it was EACC that wanted the said persons appearing in its list to be barred by the IEBC from participating in the 2022 polls.That said, the Plaintiff contends that prior to publishing the impugned article, the 2nd Defendant failed to verify the contents of the publication by either contacting him prior or interrogating the facts before the publication, therefore portending malice. 82.Further, by dint of the article, the natural and ordinary meaning of said publication was that the Plaintiff is corrupt, engaged in fraudulent dealings, unfairly used his position to fraudulently acquire land, dishonest immoral, unfit to be an aspirant for Member of Parliament or hold public office.As earlier observed, it would seem that the publication appears to stem from the 1st Defendant’s report dated 31/05/2022 which was later updated on 06/06/2022. In essence the article was assertive of the fact that the Plaintiff was being accused of fraudulent acquisition of land. 83.The Plaintiff was categorical that while indeed there was a case pending determination before Court, the same was not criminal but civil in nature therefore the article as published was false in its substance. Further, as at the time he was the serving MP for Kitutu Chache North Constituency, the impugned article hindered his re-election as he lost in the 2022 polls. 84.To shore up his claim on defamation, the Plaintiff called PW2, PW3 and PW4. PW2, who testified that he knew the Plaintiff and that upon reading the impugned publication he did not vote for the Plaintiff given the imputation created by the article, and that he still thinks that the Plaintiff is a fraudster. While he acknowledged that the impugned article did not expressly capture that the Plaintiff is a fraud he was emphatic that he would not vote for the Plaintiff given his questionable character. 85.On the part of PW3 & PW4’s their evidence was rather interesting, the former did not actually read the impugned article as the same was read to him by his son. The latter equally did not read the article however was told of what was written. It is obvious the PW4’s evidence was hearsay whereas I agree with the 1st Defendant’s that both the aforestated testimony lacked any probative value in aiding the Plaintiff’s case. 86.It would appear that useful to the Plaintiff cause was PW2’s evidence. I gather from his evidence that upon reading the impugned article, it altered his perception of the Plaintiff with the effect that he ultimately did not vote for him and would not vote for him given the imputation portended by the impugned publication. 87.On the part of the 2nd Defendant, through DW2, it was his evidence that the 2nd Defendant was not obligated to verify the report of the 1st Defendant given that the article was published on the premise of information obtained from the latter.Curiously, he stated that verification of information or news was dependent on where the information came from, stating that if such information is contained in a report from a state agency there was no need to verify. Nevertheless, he conceded that there were no criminal charges preferred as against the Plaintiff. 88.With the above in reserve, as stated in Patani (supra), defamation is actionable per se whereas concerning the applicable test in defamation, this Court draws guidance from the test spelt out in Onama v Uganda Argus Ltd (1969) EA by the East African Court of Appeal, that-:“In deciding whether the words are defamatory, the test is what the words could reasonably be regarded as meaning, not only to the general public, but also to all those “who have a greater or special knowledge of the subject matter”. 89.By the 2nd Defendant’s pleadings, it is evident that the impugned publication in its natural or ordinary meaning or otherwise consisted of qualified privilege and a fair commentary on a matter of public importance while it was based on a true and accurate reporting of the 1st Defendant report. 90.Firstly, concerning the defence of truth, justification and or qualified privilege, at the risk of repetition, of which I must, the 1st Defendant in preparation of its report’s dated 31/05/2022 & 06/06/2022 was carrying out its legal, moral and or social obligation. In any event, prior to publication of the impugned article, the 2nd Defendant did not inform the Court whether it obtained any commentary from the 1st Defendant and or Plaintiff. Meanwhile anchored down on the fact that the publication of the impugned article was purely based on 1st Defendant’s report. 91.Secondly, I note that towards shoring up its defence, the 2nd Defendant relied on DW2 Dexh.1 being the decision in Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Parties) [2022] KEHC 3209 (KLR). The latter decision pertained to consolidated petitions filed by various individuals and civil society organizations seeking interpretation and enforcement of Chapter Six of the Constitution in relation to candidates contesting the 2022 General Election. 92.Interestingly, while the impugned publication may have concerned persons who were party to the petition, the Plaintiff was neither party nor did he participate in the matter. Meanwhile, the purport of the impugned article was that the Plaintiff was accused with counts relating to the fraudulent acquisition of a piece of land, no evidence was tabled by the 2nd Defendant to the forested effect given that the evidential burden of discharging the truth and or justification was on their part. 93.Thirdly, a reading of the impugned article, the 2nd Defendant equally purports to have published the article as being fair comment on a matter of public interest, justified and on occasion of qualified privilege, premised on the 1st Defendant’s report, of which, was later updated by the latter. Notably, the 2nd Defendant took no steps to remedy its initial publication of 02/06/2026 notwithstanding the 1st Defendant’s update. 94.Concerning the defence of fair comment on a matter of public interest, the Court of Appeal in Mshindi & another v Ngenye [2024] KECA 1332 (KLR), referenced the decision emanating from the Supreme Court of Canada in Wilradeolia v Simpson (2008) SCC 40 wherein the Court succinctly set out the requirements for a statement to be regarded as fair comment, as follows, that-;“ 39.……..:“a.The comment must be on a matter of public interest.a.The comment must be based on fact.b.The comment though it can include inferences of fact must be recognizable as a comment.c.The comment must satisfy the following objective test: could any person honestly express the opinion on the proved facts.d.Even though the comment satisfies the objective test, the defence can be deflated if the plaintiff proves that the defendant was actuated by express malice”The defence of fair comment will therefore, avail where comments are made and not statements of fact. The comments so made must be on matters that are of public interest and the facts upon which the comments are based must be true, or substantially true.” 95.Subsequently, Gatembu, JA in Munene v Gisesa & another [2025] KECA 2115 (KLR) while equally addressing himself to the defence of fair comment, cited the Supreme Court of England decision of Spiller vs. Joseph [2010] UKSC 53; [2011] 1 A.C.852 where it was observed that-;“6 …….the elements that a person relying on the defence of fair comment needs to establish thus: the comment must be on a matter of public interest; the comment must be recognizable as comment, as distinct from an imputation of fact; the comment must be based on facts which are true or protected by privilege; the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based; and the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.’’ 96.Addressing itself to the issue of justification, or qualified privilege, the Court in Hon. Uhuru Muigai Kenyatta v Baraza Limited [2011] eKLR the Court observed that: -“While taking the defence of justification, or qualified privilege in a defamation case, the defendant was required by law to establish the true facts and the plaintiff has no burden to prove the defence raised by the defendant. Once verified, the justification or qualified privilege does not injure the defendant and in any event, the onus that the same is true rests on the defendants to make it a fair publication.” 97.Meanwhile, The Code of Conduct for the Practice of Journalism made under the Media Council Act provides that; -“Accuracy and fairness(1)A person subject to this Act shall write a fair, accurate and unbiased story on matters of public interest.(2)All sides of the story shall be reported, wherever possible.(3)Comments shall be sought from anyone who is mentioned in an unfavorable context and evidence of such attempts to seek the comments shall be kept”. 98.Here, applying my mind to the totality of the above decisions and latter Code of Conduct firstly-; while the 1st Defendant’s list concerning integrity question involving various aspirants must have been a subject of public interest, the 2nd Defendants failed to place or call any evidence to shore up that the Plaintiffs had indeed been indicted of counts relating to fraudulent acquisition of piece of land in Kakamega. 99.Thirdly the impugned article seemed to imply as a matter of fact that EACC was the agency at the front of wanting to bar various aspirants over integrity questions. By dint of DW1-Dexh.1, 2 & 3 the same appears not to be the case.It is IEBC that forwarded a list of all prospective candidates in the General Elections of 2022 to the 1st Defendant seeking “…any information germane on the persons listed therein to enable an appropriate processing of the persons ahead of the candidates’ formal registration..” that was slated to take place in mid-2022. 100.In my view, IEBC alongside the 1st Defendant were merely discharging their Constitution and statutory mandates in readiness of the 2022 General Election and not the imputation carried by the article. No evidence was offered by the 2nd Defendant demonstrating its compliance in this instance with the Media Code of Conduct and or that the publication was made without any malice and or bias. No comments were sought either from the 1st Defendant or the Plaintiff, over the said report prior to publication. 101.In Phineas Nyagah v Gilbert Imanyara [2013] eKLR the Court held that:“Malice here does not necessarily mean spite or ill will but recklessness itself may be evidence of malice. 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 relationship between the parties before or after the publication or in the conduct of the defendant in the course of the proceedings. Courts should however be slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsely.” 102.As to the defence of qualified privilege, here, the impugned publication was passed off as factual. And given this Court’s earlier finding that the basic facts upon which the publication was premised on were inaccurate, the said defence would be unsustainable.Therefore, reviewing the material on record, this Court is of the view that the language used in the publication, especially regarding the use of the words and phrases earlier set out herein in reference to the Plaintiff other than to sensationalize the impugned publication compounded by the inaccuracy of the publication, recklessness and malicious nature in so far as the article inaccurately imputed against the Plaintiff criminal conduct, all without first verifying and or justifying the true facts must have defamed the Plaintiff. 103.It necessitates a reminder, that it is since settled, a comment based on falsehood cannot qualify as fair comment. See Nation Media Group Limited & another v Alfred N. Mutua [2017] KECA 177 (KLR). Consequently, in view of the above, the Court believes that the Plaintiff’s grievance is merited and that the impugned article published by the 2nd Defendant dated 02/06/2022 was indeed defamatory of and concerning the Plaintiff, for which, the 2nd Defendant is therefor found to be liable for defamation. Whether the Plaintiff is entitled to an award of damages and if so, the quantum? 104.It is well settled that an award of damages is a matter of judicial discretion. In C A M v Royal Media Services Limited [2013] KECA 178 (KLR), the Court of Appeal stated that:-“No case is like the other. In the exercise of discretion to award damages for defamation, the court has wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones v Pollard (1997) EMLR 233-243 include 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; 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; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.” 105.In the case of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR, Mativo J. (as he then was) cited the case of John v MGM Ltd (1996) 1 ALL E.R. the English Court of Appeal held: -“The successful plaintiff in a defamation action is entitled to recover the general compensatory damages such sum as will compensate him for the wrong he has suffered. That must compensate him for damages to his reputation, vindicate his name, and take account of the distress, hurt and humiliation which the defamatory publication caused...Exemplary damages on the other hand had gone beyond compensation and are meant to “punish” the defendant. Aggravated damages will be ordered against a defendant who acts out of improper motive e.g. where it is attracted by malice; insistence on a flurry defence of justification or failure to apologize.” 106.Here, it is not in doubt that the impugned publication touched on the Plaintiff’s integrity, honour and reputation by demeaning him before right thinking members of the society, going by PW1’s evidence. Further, the impugned article potentially had the effect of wide reach among readers of the “Daily Nation”. It would equally seem that the 2nd Defendant has to date not retracted the article or tendered an apology to the Plaintiff yet the imputation created by the article must have affected the Plaintiff’s reputation, nevertheless. 107.The Court had earlier in this judgment set out the respective parties’ submissions on the question of damages and will thus not belabor by restating the same at this juncture.That said, in Nation Media Group v Chiguzo [2022] KECA 765 (KLR), the Court of Appeal cited with approval the decision in Nation Newspapers Limited v Daniel Musinga T/A Musinga & Co Advocates Civil Appeal No. 120 of 2008, wherein the Court appreciated that while all people are equal before the law, injury suffered in the case of defamation is not the same for all persons and “the status of a particular person affects the extent of the injury suffered.” 108.The Court went on to quote the English case of John v MGM LTD (1997) QB 586 wherein it was stated that-“In assessing damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the Plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people.” 109.The Plaintiff averred that as at publication, he was then Member of Parliament (MP) for Kitutu Chache North Constituency, vying to retain his seat and thus must have had a semblance of prominence, given the position he held. 110.Further, I take judicial notice of the fact that the Plaintiff is currently not the serving Member of Parliament (MP) for Kitutu Chache North Constituency having lost the said seat. To the foregoing end, the Plaintiff appears to argue that it is on the premise of the impugned publication that he lost his seat.On the latter, I agree with the Defendants position that notwithstanding PW2’s evidence, an election involves a lot of moving and or vitiating factors in order to guarantee success of an aspirant or candidate. Therefore, it is my reasonable deduction that the Plaintiff’s defeat in the 2022 polls cannot solely be attributed to the impugned article, to wit, the Court ought to factor the said loss in its award of damages. 111.Therefore, taking guidance from the persuasive decisions in Michael Kamau Mubea v Nation Media Group Ltd & 2 Others [2019] KEHC 9251 (KLR) wherein the Plaintiff was the claimant (was at the time Deputy Chief Executive Officer of the Ethics and Anti-Corruption Commission (EACC) awarded Kshs. 7,000,000/-, Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR) – wherein the claimant (a member of the National Assembly) was awarded Kshs. 5,000,000/- and Agnes Zani v Standard Group Limited [2019] KECA 66 (KLR) - wherein the claimant (a Senator) was awarded Kshs. 5,000,000/-, the Court believes that an award of Kshs. 5,000,000/- is justified in the circumstance. 112.On aggravated and exemplary damages, in the case of Mansion v Associated Newspapers LTD (1965) 2 ALL ER 954 at 957 the English court stated that exemplary damages may be awarded: -“In a case in which a newspaper quite deliberately published a statement which it either knows to be false or which it publishes recklessly, carelessly, whether it be true or false.” 113.Further, as to the question of aggravated damages, recently, the Court of Appeal in Matumbi v Tanui [2026] KECA 253 (KLR) pithily put it that-;“26……..Aggravated damages are compensatory, not punitive, and are intended to reflect the enhanced harm suffered” 114.The same Court succinctly went on to make a distinction when aggravated and or exemplary damages may be awarded by stating as follows-; 34.We now turn to the award of exemplary damages. The High Court awarded exemplary damages primarily on the basis that the appellant acted maliciously and failed to apologise. While those factors may be relevant in considering aggravated damages, they do not, without more, justify an award of exemplary damages. As we have explained, exemplary damages are punitive in nature and are reserved for exceptional cases falling within narrowly defined categories, such as where the defendant’s conduct was calculated to yield profit exceeding any compensatory award, or where the conduct was oppressive, arbitrary, or unconstitutional. 35…………. 36.In our view, the learned Judge erred in principle by treating malice, without more, as sufficient to ground an award of exemplary damages. That approach risks collapsing the carefully maintained distinction between aggravated and exemplary damages and expands the latter beyond its proper doctrinal limits. Consistent with Kenyan and comparative authority, the award of exemplary damages in this case cannot be sustained. 37.We accordingly set aside the award of exemplary damages in its entirety…’’ 115.In regard to both aggravated and exemplary damages, I shall adopt the decision Matumbi v Tanui (supra) wherein the court held that aggravated and exemplary damages are compensatory, not punitive. Upon consideration of the circumstance prior to the publication of the impugned article, and the award in general damages to the Plaintiff, I decline the invitation to award such damages. 116.In any event, any humiliation, distress, injury to reputation, insult, outrage or malice of the publication, that would be the purport of an award of exemplary and or aggravated damages, in my view, has been sufficiently compensated in the earlier award of general damages. 117.The Plaintiff also seeks a permanent injunction to restrain the Defendants from further publishing, discussing, writing or circulating the words referred to in plaint or similar words defamatory of the Plaintiff. However, the Court notes that the alleged defamatory statement was published over (4) years ago, and it is unlikely that the defamation will be repeated. Furthermore, granting such an injunction would unjustifiably infringe on the Defendants’ constitutional right to freedom of expression. Therefore, the request for a permanent injunction is denied. 118.The Plaintiff also seeks a declaration that he is entitled to a retraction and a suitable apology in the widest possible circulation similar to the publication. As earlier noted, the purported defamatory article was published more than four (4) years ago, and it is unlikely that the defamation will be repeated. To that end, I wholly adopt without adding more, the rendition recently taken by the Court of Appeal in Rutto v Langat & another [2025] KECA 1276 (KLR) wherein it was wittily observed that-;“Moreover, it is well established that damage to one’s reputation may not fully be cured by counter-publication or apology; the harmful statement often lingers on in people’s minds. So even if damages do not cure the defamation, they may deter promiscuous slander and constitute a real solace for irreparable harm done to one’s reputation.” Final Disposition 119.Accordingly, the Court finds and holds the 2nd Defendant liable for the tort of defamation against the Plaintiff, and enters judgment in favour of the Plaintiff against the 2nd Defendants in general damages in the sum of Kshs. 5,000,000/-. The above amount shall attract interest at Court rates from the date of this judgment until full settlement. 120.Meanwhile, the case against the 1st Defendant is dismissed with no orders as to costs, given my earlier determination that no cause of action can reasonably be sustained as against the 1st Defendant. 121.On costs of the suit, applying my mind to the provision of Section 27 of the Civil Procedure Act, I award costs of the suit in favour of the Plaintiff, to be borne by the 2nd Defendant.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026.JANET MULWA.JUDGE