[2005] KEHC 2053 (KLR)
The court found that the trial magistrate was entitled to rely on the evidence presented, including the respondent's testimony and the corroborative evidence of Boniface Gitau, who confirmed the respondent had complained of being defamed. The absence of the third-party witness, Mwangi Gatiba, was not held against...
Source-derived case information.
- Citation
- [2005] KEHC 2053 (KLR)
- Parties
- Appellant: Joshua Mwangi Maina; Respondent: Hannah Muthoni Chege
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 68 of 1998
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Defamation, Damages Award, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Mwangi Maina
Appellant
Hannah Muthoni Chege
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant defamed the respondent by uttering defamatory words in the presence of a third party.
- 2 Whether the respondent proved her case to the required standard in the absence of independent witnesses.
- 3 Whether the trial magistrate erred in finding the appellant liable for defamation.
Ratio Decidendi
The court found that the trial magistrate was entitled to rely on the evidence presented, including the respondent's testimony and the corroborative evidence of Boniface Gitau, who confirmed the respondent had complained of being defamed. The absence of the third-party witness, Mwangi Gatiba, was not held against the respondent as both parties accepted he had died before the hearing. The appellate court saw no reason to depart from the trial magistrate's findings on credibility and sufficiency of evidence. Consequently, the appellant was found liable for defamation, and the lower court's judgment was upheld.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The judgment of the lower court is upheld.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Civil Appeal 68 of 1998
JOSHUA MWANGI MAINA ………………….……………………… APPELLANT VERSUS HANNAH MUTHONI CHEGE …………………………………..….. RESPONDENT
(Appeal from original judgment in District Magistrate’s Court at Kigumo in Civil Case No. 76 of 1993 dated 8th December 1997 by P. Mwangulu – D.M. – Kigumo)
J U D G M E N T
Joshua Mwangi Maina hereinafter referred to as the Appellant is aggrieved by the judgment of the District Magistrate Kigumo delivered on 8th December 1997 in which the magistrate gave judgment for the Respondent as against the Appellant and awarded her damages of Kshs.10,000/= for defamation.
It is the appellant’s contention that the Respondent did not prove her case to the required standard and that no independent witnesses were called to support the Respondent’s case.
During the trial the respondent testified that the applicant abused her in the presence of one Mwangi Gatiba calling her a prostitute and also alleging that she had bewitched his son. The Respondent did not call any witnesses as Mwangi Gatiba in whose presence the remarks were made had unfortunately died before the trial.
The appellant on his part gave evidence denying having abused the Respondent but maintained she was making the allegations because of a grudge as the appellant had reported the Respondent to Kigumo Police Station over the disappearance of his child.
The appellant called one witness Boniface Gitau an elder who confirmed that the Respondent had complained to him about being defamed by the appellant and asked him to go and warn the appellant.
From the above it is evident that the person in whose presence the defamatory remarks were alleged to have been made was Mwangi Gatiba whom it was accepted by both parties had died before the hearing of the suit. The appellant cannot therefore be blamed for failing to call a witness who was no longer accessible.
It is evident that the trial magistrate who had the benefit of seeing the witnesses and assessing their demeanour chose to believe and accept the appellant’s evidence that the defamatory words were uttered and published to a 3rd party. I have no reason to depart from the finding of the trial magistrate in this regard. Moreover, the evidence of the defence witness Boniface Gitau was consistent with the evidence of the Respondent in that he confirmed that the Respondent had complained to him that she was defamed by the appellant. I am satisfied and do find that on the evidence which was before the trial magistrate, there was sufficient evidence to prove that the appellant was liable to the Respondent for defamation. I do therefore uphold the judgment of the lower court and dismiss the appeal. I award costs of this appeal to the Respondent. Orders accordingly.
Dated signed and delivered this 27th day of July 2005.
H. M. OKWENGU
JUDGE