https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10853

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL APPEAL NO. E731 OF 2024** **JAMES MOKUA MASESE.………………………….… APPLELLANT** **VERSUS** **ERIC SAMORA MIGAYA………………...………….… RESPONDENT** ***(Being an appeal from the ruling of Hon. B. M Cheloti PM dated 29th May 2024 in Milimani CMCC 3951 of 2022)*** **JUDGMENT** 1. This appeal arises out of the decision of **Hon. *B. M Cheloti PM*** in Milimani Chief Magistrate’s Court Civil Suit No. E3951 of 2022; where the appellant had sued the Respondent for punitive and aggravated or exemplary damages for libel, general damages, an apology in terms of and text approved by the Plaintiff to be published in a manner as prominent as the offending facebook post, a permanent injunction restraining the Respondent, servants and agents from publishing or continuing to publish facebook posts libellous to the Appellant, costs of the suit together with any other relief that the court deems fit to grant. 2. In the trial court, the Appellant via Plaint dated 2nd August, 2022 averred that in the run up to the 2022 general elections, he was actively involved in the re-election campaigns of Hon. Stazo Omung’ala Angila who is the current member of county Assembly for Savanna ward. He described himself as a knowledgeable citizen who understands the Independent Electoral and Boundaries Commission’s code of conduct which bound even political supporters. He said that he was so honourable and respectful that he was incorporated into the Azimio La Umoja Campaigns in Embakasi East constituency presidential campaigns. He recalled that on 17th July, 2022, the Respondent maliciously and without his consent caused, wrote, printed, published and/or posted a libellous update purportedly fit for public consumption and an imaginary tip off to the electoral and security agencies in the words; ***“Every upper Savanna Ward MCA aspirant has the right to sell their agenda in every part of the ward. We should listen, evaluate their policies and then elect the best man or woman. Political violence is retrogressive, divisive and tears down our democracy and peace in our ward.*** ***I want to ask the Independent Electoral and Boundaries Commission and DCI to investigate and bring to book Stazo’s chief goon King Masese who destroyed my campaign vehicles*** ***Tufanye siasa kwa Amani na upendo.”*** 1. He said that besides the Respondent tagged him in the said post, he attached photos of a smashed windscreen of the said Motor vehicle registration number KZH 780 to lend credence to the Sensational post. The post elicited 12 comments, 14 likes and 1 share adding that the same is accessible to thousands of the Respondent’s friends and readers both locally and globally which post continues to be read electronically through his friends. He said that the respondent further screenshot the post and shared it on all Donholm Estate WhatsApp group which has over 300 members including the appellant. 2. He averred that the said words posted by the Respondent were false and maliciously authored, printed and /or published in their natural meaning and that they meant and were understood to meant that the Appellant is a man of immoral character, habitually immoderate and intemperate, hired to illogically intimidate political competitors, has no respect for other people’s property, intolerant to divergent political ideologies of despicable character with no regard to the electoral code of conduct , dishonest and not worthy of a leadership position within the electoral campaigns fraternity. 3. He said that before the publication, he enjoyed good social status and respect and that the said publication was malicious and calculated to injure, disparage and lower his esteem amongst the right-thinking members of the society. He said that he suffered mental anguish, psychological torture, distress and embarrassment and added that despite asking for an apology and issuing a notice of intention to sue, the Respondent ignored the same necessitating the filing of the suit. 4. Via statement of defence dated 24th October, 2022, the respondent denied the Appellants averments in his plaint and put him to strict proof hereof. He admitted that the Appellant was proactively involved in the re-election campaign of hon. Stazo Omung’ala Angila the upper Savanna member of county assembly against various other aspirants including the respondent. He says that the appellant still enjoys good social status and the society as he is recognised as the MCA’s assistant. He said that his campaign vehicle was damaged and attacked on 16th July, 2022 while on the campaign trail of the Azimio la Umoja Presidential candidate that was to hold a rally adding that at the time of the attack, there were three members of his campaign team in his vehicle who identified the Appellant as their assailant. He said that the incident was reported to Buruburu Police Station under OB NO. 9/16/7/22 where the three victims recorded their statements and prayed that the Appellant’s claim be dismissed. 5. The trial Magistrate considered the evidence tabled before her and entered judgement in favour of the Appellant in which she directed the Respondent to issue an apology in a manner as prominent as the offending facebook, restrained the Respondent whether by himself, his servants and agents from Respondent to by restraining the Respondent publishing or continuing to publish facebook posts libellous to the Appellant and costs of the suit. 6. The appellants dissatisfied with the trial court’s decision on quantum appealed against the same to this court. The appellants listed 4 grounds of appeal to wit * 1. That the trial Magistrate erred in law and fact by disregarding to render herself on the claim and prayer for punitive and aggravated/ exemplary damages despite finding the Respondent liable for defamation. 2. That the trial magistrate erred in law and fact in failing to consider his specific payer and submissions on general damages despite finding that his reputation had been injured before right thinking members of his community. 3. That the trial magistrate erred in law and fact in failing to consider the Appellant’s prayer and submissions on punitive and aggravated damages despite finding that his reputation had been injured before the right-thinking members of his community, and 4. That the trial magistrate erred in law and fact in finding that an apology and restraining injunction sufficient remedies in the circumstances despite finding that the Respondent’s words were defamatory. 1. This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see **Selle v Associated Motor Boat Co**. [1968] EA 123). In **Kiruga v Kiruga & Another** [1988] KLR 348, the Court of Appeal observed that; ” An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 1. The Appellants consequently prayed that the appeal be allowed, this court assess and awards general, aggravated and punitive damages, costs of the appeal and those of the trail court together with any other relief that this court finds fit to grant. 2. In the trial court, PW1 James Masese lives in Donholm where he is a businessman. He recorded his witness dated 2nd August and prayed that it be adopted as his evidence in chief. He also prayed that his bundle of documents dated the same day be adopted as his exhibits in this case. He said that on the alleged day, he was in a restaurant in Greenspan mall and that he was never arrested in relation to the alleged destruction of the Respondent’s vehicle. His witness statement is a replication of his averments on his plaint. He said that he has never had any issues with the respondent and prayed that judgement be entered in his favour as prayed 3. PW2 Wachira Njenje testified that he recorded his witness statement dated 2nd august, 2022 and prayed that it be adopted as his evidence in chief. He said that he knew the Appellant as a responsible person and that he was not involved in the destruction of property. In his witness statement, PW2 stated that he knew the Appellant as an honourable and businessman, youth leader and an influential opinion shaper in Upper Savanna Ward. He said that he, together with the Appellant were proactively involved in the re-election of the Current Upper Savanna Ward member of County Assembly in the run up to the 2022 general elections and that they understood the electoral code of conduct. He further said that he was aware that the Appellant had been incorporated into the Azimio la Umoja presidential campaigns in Embakasi East Constituency and added that on the 16th July, 2022, he joined the Appellant in Greenspan Estate and later went shopping at the Greenspan mall and then later on, they went to Tumani grounds to attend a rally addressed by the Hon. Raila Odinga (deceased). He said that on the 17th August, 2022, the Respondent maliciously and without any justifiable cause caused to be published a libellous update against the Appellant in the terms; ***“Every upper Savanna Ward MCA aspirant has the right to sell their agenda in every part of the ward. We should listen, evaluate their policies and then elect the best man or woman. Political violence is retrogressive, divisive and tears down our democracy and peace in our ward.*** ***I want to ask the Independent Electoral and Boundaries Commission and DCI to investigate and bring to book Stazo’s chief goon King Masese who destroyed my campaign vehicles*** ***Tufanye siasa kwa Amani na upendo.”*** 1. He said that at no point did they bump into the Respondent and that the Appellant suffered and continued to suffer mental and psychological anguish and embarrassment as his reputation was eroded in the eyes of the right-thinking members of the society and prayed that judgement be entered in favour of the Appellant. **Analysis and Determination** 1. The appeal was disposed of by way of written submissions. The Appellant’s submissions are dated 4th November, 2025. The Respondent’s submissions are not in the court file. A perusal of the appeal file. The court had directed that the Appellant to file and serve submissions within 7 days and thereafter the Respondent to file and serve his within 7 days from the date of service. I have perused the court file and note that the court was informed by the Appellant that the Firm of Ayoo &Co were on record for the Respondents. They Respondent’s advocates were however not present on 22nd may, 2025, 10th June, 2025, 18th June, 2025, 24th July, 2025, 30th September, 2025 and 3rd March, 2026 when the matter was mentioned. There is equally no proof of service of the record of appeal upon the Respondent. 2. Be that as it may and as court of 1st appeal, I have considered the evidence as tendered before me and the trial court. The main issue for determination is whether the Appellant proved his case before the trial court and whether the trial court erred in failing to award him d general and aggravated damages. 3. Black’s law Dictionary defines defamation as "the act of harming the reputation of another by making a false statement to a third person." The book Gatley on Libel and Slander authoritatively states that a statement is defamatory of the person of who it is published if it tends to lower him in the estimation of right-thinking members of the society generally or it exposes him to public hatred, contempt or ridicule or it causes him to be shunned or avoided. A Plaintiff in a defamation case must prove that the words were spoken or written by the Defendant, that those words refer to him/her, that those words are false.” 1. In HALSBURY LAWS OF ENGLAND, 4th Edition Vol. 28. Butterworth’s, London 1997 at paragraph 42 (which was relied by the Appellant in his submissions) defines defamation as: “--- a statement is defamatory of the person of whom it is published if it tends to lower him in the estimation of right-thinking members of society generally or if it exposes him to public hatred, contempt, or ridicule or if it causes him to be shunned or avoided. A person’s reputation is not confirmed to has general character and standing but extends to his trade, business or profession.” 1. The essential elements of defamation which must be affirmatively established were elucidated in the case of **Swanya v Toyota East Africa Ltd & another** [2009] KECA 379 (KLR) as: * 1. defamatory character of the matter complained of; 2. publication to a third party; 3. malice; and 4. in slander, special damage. 2. The Appellant said that in the instant case, the Respondent posted the defamatory words on his Facebook account and that the comments elicited 12 comments, 14 likes and 1 share and that the said words and the Respondent’s Facebook account is accessible to thousands of the Respondent’s friends and readers both locally and globally which post continues to be read electronically through his friends. The Appellant further averred that the Respondent further screenshot the post and shared it on all Donholm Estate WhatsApp group which has over 300 members including the appellant. He tendered in evidence a screenshot of the Respondent’s alleged post on a WhatsApp group described as New Donholm Residents and a Facebook post from an account owned by Samora Migaya. 3. In her judgement, the Trial Magistrate found that the Respondent’s words as published on his Facebook face and on WhatsApp amounted to defamation as the same were not made in good faith. It is therefore evident that the Trial Magistrate relied on electronic evidence from the Facebook and WhatsApp posts made by the Respondents. 4. What then is the place of and admissibility of electronic evidence? Section 106 of the Evidence Act provides; “The contents of electronic records may be proved in accordance with the provisions of section 106B” 1. Section 106B (1) further provides that ***“Admissibility of electronic records.*** ***(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as "computer output") shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.*** 106B (4) further reads that ***In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—*** 1. ***identifying the electronic record containing the statement and describing the manner in which it was produced;*** 2. ***giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;*** 3. ***dealing with any matters to which conditions mentioned in subsection (2) relate; and*** 4. ***purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.*** 1. The Court of Appeal in **County Assembly of Kisumu & 2 Others V Kisumu County Assembly Service Board & 6 Others** [2015] eKLR held that; “Section 106B of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46) states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.” In our view, this is a mandatory requirement which was enacted for good reason. The Court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced.” 1. I have perused the record of appeal and the trial court file and note that the Appellant trial court file and note that there is no certificate of authentication of the WhatsApp and Facebook printouts. The Appellant’s exhibits were therefore inadmissible in evidence I therefore find that the Respondent having failed to file a certificate of authentication of the Facebook and whatsApp Screenshots under Section 106B (1) and (4) of the Evidence Act, the same cannot be admissible as evidence as their authenticity and integrity was not proved. 2. This court is alive to the fact that the Defendant’s closed their case without tendering any evidence as elucidated in **Leo Investment Limited v Mau West Limited & another [2019] eKLR** as applied in the case of **Grain Industries Limited v Ali & 6** others [2023] (KLR) the court stated that; - “But what are the effect of failure by the appellant to tender evidence in rebuttal? The court in **Shaneebal Limited vs County Government of Machakos** [2018] eKLR (supra) addressed this issue in paragraphs 24 to 29 and while citing other case laws it held that where no defence is filed but no witness is called to give evidence in support of the defence, it means that the defence renders the plaintiff’s case unchallenged.” 1. It is true that the Respondent's case was closed without the adduction of any evidence and, consequently, the Appellant's evidence remained uncontroverted. However, the mere fact that evidence is unchallenged does not relieve the court of its duty to evaluate its credibility, probative value, and consistency with the law and the entire record. A court of law is required to determine disputes on the basis of all the evidence before it and the applicable legal principles. If unchallenged evidence were to be accepted automatically as truthful and conclusive without judicial scrutiny, the court's adjudicative role would be rendered redundant. 2. The upshot is that the Appellant's appeal lacks merit. Upon re-evaluating the evidence and the applicable law, I find that the Appellant failed to prove the claim for defamation and is therefore not entitled to the reliefs sought. Consequently, the appeal is hereby dismissed with costs to the Respondent. 3. On costs, the court in **Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR** for the principle that costs follow the event, subject to the discretion of the Court. Further in **Impressa Ing Fortunato Federice v Nabwire [2001] 2 EA 383** and Re Ebuneiri Waisswa Kafuko,Kampala HCMA No. 81 of **1993** cited in **Pet No 466 of 2014 Republic vs Kenya National Highway Authority & Others, Ex parte Kanyingi Wahome** the court held that costs are discretionary and that a successful party should not be denied costs. 4. However, the Respondent did not participate in the proceedings herein. He therefore did not incur any costs. This court will not consequently not make any orders as to costs. It is so ordered. Right of appeal 30 days. Dated, signed and delivered this 17th day of July, 2026 **………………….….** **ROSELINE OGANYO** **JUDGE** **In the presence of: -** C/Asst……E, Sana Mr. Mogendi h/b for Mr. Munyendo for Appellant N/A for Respondent.