Omusugu v Khatoko (Civil Suit E003 of 2025) [2026] KEMC 478 (KLR) (12 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATES COURT AT MALABA** **CIVIL SUIT NO. E003 OF 2025** **LEVI IYESA OMUSUGU……………................................................PLAINTIFF** **-VERSUS-** **BENARD KHATOKO……………….……..…………………………………..DEFENDANT** **JUDGMENT** **Introduction and Pleadings** 1. Vide a Plaint dated 8th January 2025, the Plaintiff instituted this Suit against the Defendant herein and sought that judgment be entered in the following terms: - 2. General damages for defamation of character 3. Exemplary damages for malicious libel for uttering words concerning the Plaintiff with reckless disregard as to whether or not they were injurious to the Plaintiff 4. Aggravated damages arising from the Defendant’s refusal to apologize or retract the statement after demand to do so. 5. A public apology to the Plaintiff 6. Costs of the Suit 7. Any other or further reliefs that this Honorable Court may deem fit to grant. 8. The brief facts of the case are that on numerous dates in the years 2023 and 2024 the Defendant made defamatory statements against the Plaintiff publicly stating in Swahili that: - “***Levi Yesa Omusugu Alimuua Kevin”*** “***Levi Yesa Omusugu ni muuaji anataka kutumia pesa yake kuniua vile ameua Kevo”*** 1. That the statements were made on a facebook page with viewership of over fifty (50) people and in 2024 at Amagoro Law Courts in the presence of many people. That given the fact that the Plaintiff is a flourishing business man, it is the Plaintiff’s contention that the statements were made out of jealousy, ill will and a misguided perception with an aim of ruining and ridiculing the Plaintiff’s business journey. 1. The Plaintiff further avers that the said words have greatly caused embarrassment and have tainted his image as a well-known business man in turn adversely affecting his business. 2. The defendant initially appointed Sichangi & Company Advocates to represent him in the matter. However, the said advocates did not participate in the proceedings, and the matter proceeded to hearing on 30th July 2025 when the Plaintiff presented his evidence. 3. Subsequently, on 3rd February 2026, Wanyama & Company Advocates filed a formal application seeking inter alia, that the proceedings of 30th July 2025 be set aside and the matter commence de novo. The application was compromised by consent on 12th February 2026, on terms that the Defendant would pay throw away costs and would be granted leave to file its defense. 4. However, on 3rd June 2026, the Defendant had neither fully complied with the order on payment of the throw away costs nor filed its defence. Consequently, the matter proceeded without further participation by the Defendant. In the circumstances, the proceedings of 30th July 2025 remained valid and were not set aside and the evidence adduced by the Plaintiff on the said date remains on record. 5. The Plaintiff thus closed its case on the 3rd day of June 2026 and the matter was mentioned on 24th June 2026 to confirm filing of submissions. The court reserved the matter for judgment on 12th August 2026. The court has read and considered submissions filed by the Plaintiff. 6. The issue for determination is ***whether on the evidence presented, the Plaintiff proved the essential elements of the tort of defamation against the Defendant and consequently whether the Plaintiff is entitled to the reliefs sought.*** 7. The plaintiff’s claim is founded on the allegation that the Defendant uttered and/or published defamatory words concerning the Plaintiff on Facebook and at Amagoro Law Courts. The Plaintiff was therefore required to establish, on a balance of probabilities, that the impugned words were defamatory, referred to the Plaintiff and were published by the defendant third party. 8. Publication is an essential element of the tort. It is not sufficient for a Plaintiff to merely state that defamatory words were uttered or published; there must be evidence demonstrating that the words were uttered or published, that the words were communicated to a person other than the Plaintiff and where publication is attributed to the Defendant, evidence connecting the Defendant to that publication. 9. In the present case, no Facebook post though alluded to was produced in evidence. There was no screenshot print out, electronic record or other documentary evidence demonstrating the alleged publication, its contents, the account from which it emanated or its attribution to the Defendant. The court cannot treat reference to a document in a list of documents as a substitute for the document itself. Equally no independent witness was called to establish that the Defendant uttered or published the alleged words on Facebook or that the words were uttered at Amagoro Law Courts and heard by persons other than Plaintiff. 10. In [**Muriuki v Muthama & another [2025] KEHC 14877 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14877/eng%402025-10-17) Mshila J held as follows: - ***25.It is not enough that the Respondents were charged or offensive conduct where they pleaded guilty and were convicted of the said offence, the Appellant ought to have provided evidence to the trial court to prove that indeed the alleged defamatory words were communicated to third parties who now hold the Appellant with less regard.*** ***26.Failure to call witnesses on the part of the Appellant, caused the claim for defamation to fail as publication must be proved over and above proving that defamatory words were uttered against yourself which is the case herein.*** ***27.In the circumstances, this Court is satisfied that the appeal lacks merit.*** 1. The Court of Appeal in [**Onchieku v Kwayera & another [2025] KECA 520 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/520/eng%402025-03-21)held as follows: - ***40.Lastly, the appellant sought to convince the court that his stature was lowered in the eyes of right-thinking folks following the said publication. He stated that since the publication of the article, which was read widely, he had received negative gestures from people whenever he is walking in public. Also, that fellow workmates at his place of work, from senior to junior staff developed a negative attitude towards him. That although he was not suspended or interdicted by the NSSF over any loss of Kshs. 10,000,000 as alleged by the article he was however, demoted from the position of Assistant Information Officer to Clerk.*** ***41.The respondents on their part argued that the appellant’s suit does not disclose a cause of action against the respondents. That it did not specifically plead the requisite particulars, nor was any testimony led during the trial, in respect of the offending publication, or alleged defamatory words.*** ***42.We note that during the hearing the appellant adopted his witness statement which, as stated above, did not disclose the cause of action or the specific defamatory words complained of. There was also no evidence adduced by any independent witness to show that the so-called defamatory words caused the witness to think any less of the appellant, so that the injury to his reputation was not just a figment of his imagination.*** ***43.In the end we find, as did the learned trial judge, that the appellant did not prove his case to the standard required. Consequently, we will not embark on addressing the hypothetical question of assessing what would have been the appropriate award had the appeal succeeded, as to do so would amount to nothing more than an academic exercise.*** 1. The fact that the defendant did not participate in the proceedings does not relieve the Plaintiff of the burden of proof. The Plaintiff’s evidence remains subject to evaluation against the legal elements of the cause of action. Indeed, the court cannot infer publication merely from the pleading that words were posted on Facebook or uttered in court. The absence of the alleged Facebook publication and the failure to call any independent witness to prove the alleged utterances at Amagoro Law Courts leave a fundamental evidential gap in the Plaintiff’s case. 2. The upshot of my findings therefore is that the Plaintiff has failed to prove the tort of defamation on a balance of probabilities. The Claim is therefore dismissed. Since the Defendant did not participate in the matter, there shall be no orders as to costs. **JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 12TH DAY OF AUGUST, 2026.** In the Presence of Mr. Ouma for the Plaintiff Bernard Kahtoko the Defendant Court Assistant: Brenda Ochieng’ **A.Z. OGANGE** **RESIDENT MAGISTRATE** 12.08.2026