https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7789

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. 446 OF 2015** **MICHAEL MUBEA KAMAU…..….……………..................PLAINTIFF** **-VERSUS-** **MUTUMA MATHIU……………..……….….…...…..…1ST DEFENDANT** **NATION MEDIA GROUP.……………………..….……2ND DEFENDANT** **JUDGMENT** **Pleadings** 1. By a Plaint dated **23/12/2015, Michael Mubea Kamau** *(hereafter the Plaintiff)* sued **Mutuma Mathiu** and **Nation Media Group** *(hereafter the 1st & 2nd Defendant/Defendants)* for alleged defamation and sought judgment against them jointly and severally for-; 2. *An order that the Defendants do make a full and unqualified apology, make amends and withdrawal of the said complained of article and such apology amends and withdrawal to be given the widest possible prominence and circulation, similar to the complained article, the text and substance thereof to be approved by the Plaintiff.* 3. *General, aggravated and exemplary damages for defamation and libel the quantum thereof to be determined by this Honorable Court.* 4. *Costs of the suit.* 5. *Interest on (b) above at Court rates* 6. *Such other and or further relief as this honorable Court might deem fit and just to order.* 7. The Plaintiff states that sometime in 21/04/2015, the Defendants in their Newspaper, the **“Daily Nation”** at **Pg. 2**, falsely, maliciously, contemptuously and disparagingly printed and published and or caused to be printed and published in bold conspicuous letters of and concerning the Plaintiff. That the said article as published by the Defendant in the **“Daily Nation”** was not only false, untrue, libelous, malicious and defamatory to the Plaintiff but was also contemptuous, disparaging and ill motivated to the Plaintiff. 8. It was the Plaintiff’s averment that the impugned article published on the aforestated date, read in part as follows-; *“Mubea accused of hiding information on acquisition of the Anti-Corruption office and conduct* *The Deputy Chief Executive of the Anti-Corruption agency Michael Mubea was yesterday suspended for 90 days after weeks of investigations into his conduct.* *According to a source who requested anonymity, the commissioners at Ethics and Anti-Corruption Commission relied on findings of the investigations to send him home* *Among other issues, Mr. Mubea was investigated for concealing information on the acquisition of Integrity Centre, the headquarters of EACC.* *At the same time, more than 20 graft related cases will be forwarded to the office of the Director of Public Prosecution (DPP) next week for direction. Ethics and Anti-Corruption Commission (EACC) chairman Mumo Matemu, said yesterday”* 1. The Plaintiff went on to aver that the Defendants in so publishing the same were actuated by extreme malice, spite and calculated to injure, discredit, intimidate, defame and destroy the Plaintiff both in his personal and professional image as an Advocate of the High Court of Kenya and also as the Deputy Chief Executive Officer of the Ethics and Anti-Corruption Commission (EACC). 2. That by reasons of the aforestated, the Plaintiff’s reputation, integrity, personality and credibility both personally and as a prominent Advocate and Deputy Director of the EACC had been seriously and irreparably injured and he has suffered considerable distress, damage, humiliation, agony, mental torture, and extreme embarrassment; has also been brought to public ridicule, hatred, contempt, suspicion, odium, for which he claims damages against the Defendants. 3. **In their statement of defence dated 29/11/2018**, the Defendants admit to publishing the impugned article, however denied the other key averments in the Plaint and particularly that the article complained of was falsely, maliciously, contemptuously and disparagingly printed and published of and concerning the Plaintiff or that the article complained of was libelous, defamatory and ill motivated. The Defendants go on to state that the portion of the article complained of that refered to the Plaintiff was true in substance and a fair comment on a matter of profound public interest, and was published on an occasion of qualified privilege. That in any event the issues covered in the article complained of were done in exercise of the right conferred by **Article 34** of the **Constitution**. 4. The suit proceeded to full hearing during which both parties called evidence in support of the averments in their respective pleadings. **Plaintiff’s Case and Evidence** 1. **Michael Mubea,** testified as **PW1.** He identified himself as an Advocate of the High Court of Kenya and at the time serving as an Ambassador of Kenya in Ireland, since 2019, having previously worked for the EACC since 2013, until his resignation in 2019. It was his evidence that the publication was a lie, false, defamatory and hurtful. That he was never suspended from his position at the EACC or subjected to any investigation of any kind. He proceeded to adopt his witness statement dated 20/12/2016 as his evidence in chief while adducing into evidence the bundle of documents appearing in his list of documents as **Pexh.1 - 8.** 2. He goes on to state that being aggrieved with the article, he wrote a demand letter through his advocates seeking an apology and later filed the instant suit. He further testified that the publication injured his reputation, among his family, church members, and his profession as an Advocate. It was his evidence that as Deputy Director at EACC, he was in charge of technical services therefore he had nothing to do with sale of properties as matters concerning sale of Integrity Centre or otherwise were under the Finance Department. He stated that the Defendants did not obtain a comment from him prior to or after publication to gain his side of the story. In conclusion he urged the Court to allow the suit as filed against the Defendants. 3. **Under cross examination**, **PW1** confirmed that in 2015 he was serving as the Deputy CEO of EACC, and that at the time, EACC was investigating the sale of Integrity Centre and it was unusual for officers to be suspended and interdicted during investigations. He confirmed having been interdicted via a letter, in March 2015, however no reasons were given in the said letter. That the interdiction was lifted and it did not concern the sale of Integrity Center. 4. **PW1** being referred to the impugned article, he confirmed that it used the words accused, for which he understood the meaning, but he did not adduce any documents to show that his suspension did not concern the issue of concealing information, as captured in the publication. He added that notwithstanding the investigation around Integrity Center, which were eventually closed by the Director of Public Prosecution (DPP) due to lack of evidence, his interdiction was lifted immediately. It was his evidence that he was neither demoted nor transferred, but left the employment of EACC in 2019 and was thereafter appointed as an ambassador, which position he still holds. 5. He confirmed that the publication did not affect his career though it affected his personal and professional life given the questions he received from persons within the latter spheres of his life. Lastly, he stated that Integrity Centre was acquired during his tenure while at the EACC, and reiterated that he was not under any investigation as at publication of the impugned article. 6. **In re-examination**, the Plaintiff maintained that he was not involved in the sale of Integrity Centre, that during his vetting for the ambassadorial position, he was questioned about the publication, and meanwhile the public continues to read about the impugned article. He concluded by stating that the publication did not make any reference to any gazetted investigation reports or annual reports by EACC. 7. **Dr. Victor Kimani**, testified as **PW2**. He identified himself as a Pastor at Parklands Baptist Church having served there for close to 12 years. It was his evidence that he had known the Plaintiff for over 20 years on a personal level and that the latter also serves as a trustee within the board at the church. He proceeded to adopt his witness statement dated 14/04/2024 as his evidence in chief. The gist of his adopted statement was that upon reading the article he contacted the Plaintiff who explained to him that the article was untrue. He concluded by stating that the article seriously tainted the Plaintiff’s reputation and image within the church. 8. **On cross-examination**, he stated that he knew the Plaintiff was an employee of EACC and that he was suspended sometime in 2015. That he knew the Plaintiff as an honest person whereas despite reading the article in question he still maintained a relationship with him. He went on to confirm that he was aware that the Plaintiff was appointed as an ambassador and that his appointment occurred after publication of the impugned article. That his perception of the Plaintiff as a man of integrity did not change despite the article given that he knew him personally; however his concern was localized on the contents of the article touching on someone he personally knew. 9. **In re-examination,** he maintained that the article tainted the Plaintiff’s image as a person, that it occasioned the Plaintiff to stop attending church. That the article equally caused the Plaintiff distress however he continued to encourage him during the said period. 10. **Halake D. Waqo** testified as **PW3**. On his part he testified that at the material time he was serving as the Chief Executive Officer at EACC and that the Plaintiff worked under him between the years 2013 – 2019, that the article published by the Defendants was inaccurate on accord of the fact that the Plaintiff was never suspended or sent home for six (6) months. He adopted his witness statement dated 22/07/2022 as his evidence in chief, its gist being that the Plaintiff was a person of integrity and dutifully carried out his position. 11. **On cross-examination**, hemaintained that the Plaintiff was not suspended and that the article was defamatory when it spoke of the plaintiff having been suspended. He confirmed that the Plaintiff was interdicted sometime in 2015 however qualified that the term suspended and interdicted have different meanings. It was his testimony that the Plaintiff was unprocedurally interdicted by EACC Chairman, however the same was immediately lifted. He equally confirmed that the Plaintiff’s career at EACC was not affected, however added that the publication had a psychological impact on him. In conclusion, he conceded that an issue over the sale of Integrity Center attracted public attention and interest therefore the media would be able to comment on it, if properly conceived. 12. **In re-examination**, PW3 clarified that the Plaintiff’s interdiction and subsequent lifting thereof occurred on the same day and that the EACC chairman at the time had no authority to interdict the Plaintiff. It was his further testimony that there had been no complaints received by the EACC prior to the Plaintiff’s interdiction and its lifting. He stated that the Plaintiff was never involved in the transaction relating to the transfer of Integrity Centre, reiterating that the article as published by the Defendants must have been driven by malice with the effect of adversely affecting the Plaintiff. In summation, he stated that the Plaintiff was never under investigation at any given point and stated that prior to interdiction, the EACC Human Resource Policy and Procedure ought to have been followed, of which was not done in respect of the Plaintiff’s case. 13. **Njoroge Wachira,** testified as **PW4**. He began by identifying himself as an Advocate of the High Court of Kenya and that the Plaintiff was his personal friend for close to 34 years. He adopted his witness statement dated 16/04/2024 as his evidence in chief meanwhile went on to state that upon reading the impugned article, he was extremely astonished as he had known the Plaintiff as an honest and upright person. He went on to state that he called the Plaintiff who in turn told him that the publication was false with the intent to tarnish his reputation. That he equally received phone calls from friends and advocates, over the matter, who knew of the proximity of his friendship to the Plaintiff. 14. **On cross-examination**, he confirmed having spoken to the Plaintiff who stated that the article was false; that the Plaintiff was a person of high integrity and he believed him when he stated that the article was untrue. It was his evidence that the Plaintiff’s career would have been affected by the said publication, despite his eventual appointment as an ambassador. He concluded that the Plaintiff’s interdiction was short lived and that the article was false and maliciously published by the Defendants. 15. **In re-examination**, he iterated that the publication affected the Plaintiff and had the intention of maligning and defaming the Plaintiff. **Defendants Case and Evidence** 1. **Abiud Ochieng** testified as **DW1.** He began by stating that as at publication of the impugned article, he was serving as a Court Reporter and that he co-published the article. He proceeded to adopt his witness statement dated 06/10/2021 as his evidence in chief and adduced the document appearing in the Defendants list of documents dated 08/10/2021 as **Dexh.1**. The gist of his statement was that the impugned article focused on various investigations that EACC was conducting at the time, relating to various graft cases. That reference to the Plaintiff in the article was limited to the extent that at the time of publication the Plaintiff had been suspended to pave way for further investigations into his conduct. 2. It was his evidence that at the time, the Plaintiff had been suspended for 30 days and later reinstated thereafter suspended again for a period of 90 days. That the Plaintiff’s suspension was a matter that was within the public domain concerning investigations as to the acquisition of Integrity Centre therefore the publication was true in substance. Further, the article concerned a matter of great public interest, to wit, the Defendants had a social duty to inform the public of a matter. Therefore, the article constituted fair comment and was not in any way published for the benefit or profit of the Defendants. 3. **On cross-examination**, he confirmed being familiar with the *Media Code of Conduct* and that he was the one who authored the part of the impugned article that is the subject matter of the suit. He stated that he was invited by EACC to cover a media conference on investigations being carried out by the latter. He maintained that it is during the coverage of the said conference that the information concerning the Plaintiff’s suspension came to light however he did not have any documentation before the Court to shore up the fact meanwhile the story was equally published by other media houses. He concluded by stating that his story was based on what he had gathered from EACC, its commissioners and chairperson. 4. **In re-examination,** he stated that the Plaintiff’s demand letter was addressed to the 2nd Defendant by the Plaintiff, hence he did not have a right of reply. 5. At the close of the trial, directions were taken on filing of submissions. The parties duly complied. **Plaintiff’s Submissions** 1. Counsel for the Plaintiff began his submissions by setting out a brief history of the matter and evidence tendered before the Court meanwhile condensed his submissions into three (3) cogent issues; whether the impugned publication was defamatory, malicious, false, spiteful and contemptuous. while calling to aid the definition of defamation as captured in **Halsbury’s Laws of England, 4th Ed. Vol. 28 Para. 10**, the decisions in **Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR** and **Dasani v Ochieng [2025] KEHC 3776 (KLR)**, counsel argued that the article and its attendant headline had the effect of injuring the Plaintiff’s reputation in the eyes of the public. That an ordinary reader who happened across the article would naturally conclude that the Plaintiff was corrupt or under investigation. 2. Further while citing the decisions in **Phineas Nyaga v Gitobu Imanyara [2013] eKLR** and **Machira t/a Machira & Co. Advocates v Wangethi Mwangi & Another,** counsel argued that the publication was malicious given that the Defendants failed to verify the facts, relied on anonymous sources, ignored demand letters and continued to circulate the article despite knowing it to be false. That the Defendants having acted recklessly and maliciously in publishing the impugned article, their defence of qualified privilege could not attach. 3. Counsel went on to posit that the article named and pictured the Plaintiff, was published in a national newspaper, purported to accuse the Plaintiff of misconduct whereas the said allegation therein were untrue therefore the publication checked all elements for being defamatory. The decision in **Sanitam Services (E.A) Ltd v Nyaga & Another [2023] KECA 386 (KLR)** was cited in the forestated regard. That the Defendants publication was contrary to the clear standards of journalism required on the Defendants pursuant to *The Code of Conduct for the Practices of Journalism* in Kenya, which obligates that news be presented with integrity, decency and respect to the subject. 4. As to whether the defence of fair comment as urged by the Defendants could sustain, counsel submitted that it required of the latter to perform fair and accurate reporting and refrain from publication merely because another person made the statement first. While calling to aid the decisions in **Hon. Uhuru Muigai Kenyatta v Baraza Limited [2011] eKLR**, **HCC No. 420 of 2011 – Samuel Ndung’u Mukunya v Nation Media Group Limited & Another**, **HCC No. 210 of 2016 - Michael Kamau Mubea v Nation Media Group & 2 Others,** counsel posited that the Defendants failed to adduce any evidence to shore up their defence whereas the impugned article having been published without verification meant that the Defendants could not rely on defences under **Section 14** and **15** of the **Defamation Act.** 5. On whether the Plaintiff is entitled to damages, while calling to aid **Section 3** of the **Defamation Act**, the decision in **Mikidadi v Khalfan & Another [2004] eKLR**, **Jones v Pollard (1997) EMLR 233-234** as cited in **CAM v Royal Media Services Ltd [2013] KECA 178 (KLR)** counsel submitted that in awarding damages this Court ought to consider the gravity of the allegation, its reach, its effect, the Plaintiff’s reputation and the Defendants behavior. 6. That as at time of publication, the Plaintiff was an Advocate of about 14 years standing, was held in high esteem by high-ranking government and judicial officers, peers, friends, family and neighbors. Counsel thus relied on the decision in **Machira v Mwangi & Another [2001] eKLR**, **Daniel Musinga t/a Musinga & Co. Advocates v Nation Newspaper Ltd [2005] eKLR**, **Michael Mubea (supra)** and **Dasani (supra)** to urge the Court that an award of **Kshs. 25,000,000/-** would be sufficient in general damages. 7. Penultimately, on whether the Plaintiff is entitled to an award of aggravated and exemplary damages, counsel submitted that given the evidence in support of the falsehood of the publication, its malicious nature, the harm to the Plaintiff and the Defendants failure to retract the publication and or issue and apology, an award of aggravated damages is just and necessary. Counsel therefore urged a sum of **Kshs. 6,000,000/-** as aggravated damages and **Kshs.5,000,000/-** in damages in lieu of an apology. The English decision in **John v MGN Ltd [1997] QB 586** was cited in the aforestated regard.In summation, the Court was urged to allow the suit as lodged. **Defendant’s Submissions** 1. On the part of the Defendants, counsel equally condensed his submissions into three (3) cogent issues. Submitting on whether the article is defamatory and whether the Defendants had lawful grounds to publish the article in question, while calling to aid the decisions in **Musikari Kombo v Royal Media Services Limited [2018] eKLR, Gatangi v Kungutia [2022] KEHC 10596 (KLR)**, **James Njagi Joel v Junius Nyaga Joel [2020] eKLR, S M W v Z W M [2015] eKLR, Kudwoli & Another v. Eureka Educational & Training Consultants & 2 others [1993] eKLR, Chase Bank (Kenya) Limited v Cannon Assurance (K) Limited [2019] eKLR, Gatonye and another v Kinyae 2 others [2025] KEHC 11706 (KLR)** and **Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] KEHC 5590 (KLR)** counsel submitted that the Plaintiff failed to prove reputational harm because the evidence of the Plaintiff’s own witnesses was that the latter continued serving at the EACC, continued with his role in church, was not shunned or excommunicated, continued practicing as an advocate and was later appointed as an ambassador. It was further submitted no right-thinking member of society would derive the defamatory meaning as pleaded by the Plaintiff, upon reading the impugned article. 2. Additionally, the Defendants submitted that the Plaintiff having failed to adduce evidence to contradict his suspension, there was truth to the publication, to wit, the Defendant was justified in publishing the article complained of. It was equally posited that the Plaintiff at the time was occupying public office therefore the public had a right to know the goings-on in the Country with respect to matters of corruption. That by dint of **Article 34** of the **Constitution**, the Defendants had a duty to inform the public on a matter of public interest and in so doing published the impugned article on account of fair comment in the ordinary course of discharging their duty without malice. The decisions in **Evans Kidero v John Kamau & another [2017] eKLR, David Chege Mwangi v Mugambo Wa Gachocho Co. Limited [2010] eKLR** and **Jacob Mwanto Wangora** (supra) were cited in above regard. 3. On whether the Plaintiff is entitled to the reliefs sought, counsel equally cited the English decision in **Jones v Pollard** (supra) to argue that the Plaintiff failed to prove that the article complained about was defamatory, that his reputation was lowered before right thinking members of society, failed to adduce evidence that the article was untrue and or that the impugned publication was actuated by malice. It was further argued that there was no evidence of recklessness, intentional wrongdoing or profit motivation to warrant an award of exemplary damages. The decisions in **The Nairobi Star Publication Ltd v Elizabeth Atieno Oyoo [2018] eKLR** and **Stephen Thuo Muchina v Wainaina Kiganya & 2 Others [2012] eKLR** were called to aid on the above. 4. In conclusion, defence counsel submitted that the Defendants having demonstrated that the contents of the article complained of were true and that publication was informed by a greater public interest therefore the Plaintiff is not entitled to any remedies sought for in the plaint. The Court was thus urged to dismiss the suit with costs. **Analysis and Determination** 1. 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-:** 1. *Whether the Plaintiff has made out a case for defamation against the Defendants;* 2. *Whether the defence of truth, fair comment and qualified privilege are available to the Defendants; and* 3. *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 truth, fair comment and qualified privilege are available to the Defendants?*** 1. 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…”* 1. 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.”* 1. 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. 2. As rightly, pleaded by the Defendants, **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**. 3. That said, considering these competing rights **Lord Denning MR** stated inEnglish 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.”* 1. 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 -: * 1. *That the matter of which the plaintiff complains is defamatory in character.* 2. *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.* 3. *That it was published maliciously.* 4. *In slander, subject to certain exceptions, the plaintiff has suffered special damage.* 2. 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:* 1. *The statement must be defamatory.* 2. *The statement must refer to the plaintiff.* 3. *The statement must be published by the defendant.* 4. *The statement must be false.”* 5. It is trite that the ingredients set out in **Patani** (supra) are sequential hurdles, to wit, all must successively be met in order for one to succeed in a claim premised on defamation. In this case, ingredients **(ii)** & **(iii)** above have not been contested, as the Defendants readily admit to publishing the words in question in their statement of defence. The two (2) issues in dispute and to be considered contemporaneously are **whether the publications were defamatory and or false?; and whether the defence as advanced by the Defendants is tenable?** 6. It is not in dispute that the Defendants ran a publication in the **“Daily Nation”**on 21.04.2015 titled **“EACC boss sent home over the sale of Integrity Centre”** which mentioned the Plaintiff by name. At the time of publication, the Plaintiff who testified as **PW1,** was an Advocate of the High Court of Kenya having practiced close to fourteen (14) years meanwhile was serving as the Deputy Chief Executive Officer, Technical Services at the EACC. 7. It was equally his evidence that during the course of his employment at EACC his immediate superior was **PW3**, who at the time, was serving as the EACC Chief Executive Officer. He maintained that the Plaintiff had neither been suspended nor sent home for any reason however conceded that he was unprocedurally interdicted, of which, was immediately lifted, to wit, it cannot be stated that he had been out of office for more than a day. 8. That said, the gist of the impugned article was captured earlier in this judgment. What this Court garners to be the Plaintiffs case is that prior to publishing the impugned article, the Defendants failed to verify the contents of the publication by either contacting him prior or interrogating the facts after, therefore portending malice. Further, by dint of the article, the natural and ordinary meaning of said publication was that the Plaintiff is a dishonest advocate without morals and ethics, engages in questionable and dishonorable transactions, is incompetent, greedy and untrustworthy, engages in fraudulent activity, commits crimes with wanton abandon, among others. 1. Notably, the article employed varied choices of words and phrases starting with the title that captioned “*EACC boss sent home…..*”. It went on to capture in part that *“Mubea accused of hiding information on acquisition of Anti-corruption office”,* “*Michael Mubea was yesterday suspended*”, “*investigations into his conduct”,* “*the commissioners…….relied on findings of the investigation to send him home”, and “Mr. Mubea was investigated for concealing information…’’* 2. My understanding of the publication as particularly relates to the Plaintiff is that the Defendants were reporting on the workings of EACC concerning various investigations it was undertaking and the likely steps to be taken in respect of the said investigations. Particularly as concerns the Plaintiff, the Defendants report appears to have been premised on an anonymous source and not the invitational EACC media conference, that **DW1** covered, as stated in his testimony. In essence the article was assertive of the fact that the Plaintiff was being investigated for his conduct and hiding information on the acquisition of the EACC offices, whereas it was the positioning of the said report that the Plaintiff had been suspended for 90 days after weeks of investigations. **PW1** was categorical that he had never been suspended at any given point, though he acknowledged being unprocedurally interdicted but which was short lived. 3. Meanwhile, **PW3** who was at the time of publication the Plaintiff’s immediate superior, was categorical that the article was inaccurate as the former had never been suspended or sent home. He stated that the Plaintiff was a person of integrity and that he had never been contacted by the Defendants to either obtain a comment or verify the accuracy of the information in the published article. While he acknowledged that the Plaintiff was interdicted, he qualified that the said interdiction was unprocedural and was immediately lifted given that no complaints had been received by the EACC prior to the said interdiction. His conclusion was that the article was false. 4. Notably, it was the Plaintiff’s case that at the time of publication, he was serving as the EACC technical director therefore he had nothing to do with the sale of EACC offices, which position was confirmed by **PW3.** The Plaintiff further testified that upon publication, the article injured his reputation, among family, colleagues and friends however he was neither demoted nor transferred whereas he left the employment of EACC in 2019 and thereafter appointed as an ambassador, which position he still holds. 5. To shore up the issue of defamation, the Plaintiff called **PW2**, **PW3** and **PW4.** The kernel of their evidence being that they were astonished upon reading the article, they later contacted the Plaintiff, who confirmed the falsity of the said publication. I equally gather from their evidence that their relationship with the Plaintiff did not waver despite reading the publication. However, they avowed to his character and that the article was in itself defamatory of the Plaintiff. 6. On the part of the Defendants, through **DW1**, upon being put to task during cross examination, he confirmed being familiar with the *Media Code of Conduct*. While it was his evidence that the issue of the Plaintiff’s suspension came to light upon attending to the EACC to cover a media conference on investigation by the latter, he confirmed to not having any documentation to shore up the said invitation or press briefing. That the story concerning the Plaintiff had equally been covered by other media outlets whereas the information as published was gathered from EACC, its commissioners and chairperson. 7. 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 test spelt out in **Onama v Uganda Argus Ltd (1969) EA** bythe 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”.* 1. By their pleadings, the Defendants stance is that the words in their natural or ordinary meaning or otherwise consisted of truth, fair comment and qualified privilege upon facts which were matters of public interest. Firstly, concerning truth, I note that the Defendants placed both the legal and evidential burden on the Plaintiff to discharge the fact that the publication was indeed true. That the Plaintiff having failed to adduce evidence to contradict his suspension there was truth to the publication, to wit, the Defendant was justified in publishing the article complained of. I do not agree with the above preposition, in light of the exhortation in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others [2014] eKLR** regarding the question of legal and evidential burden. 2. While the legal burden was on the Plaintiff to prove on a balance of probabilities that the impugned article was defamatory, the evidential burden was on the Defendants to prove that indeed the article as published was truthful. The fact that the issue had been published by other media outlets as a matter of public interest did not warrant the Defendants to publish their own article on the issue without verification as to the truthfulness. A reading of the impugned article, the Defendants published the same on the presumption of truth from an anonymous source who relayed the fact that based on investigative findings the EACC suspended the Plaintiff. 3. The evidential burden was on the Defendant to adduce evidence towards the truthfulness of their publication, either a letter proving that indeed the Plaintiff was suspended, an investigation report, recommendation to the DPP for investigation or prosecution, or even at the very extreme the anonymous source. With respect to the latter, I say so with great reservation given the importance of anonymity of sources to journalism. Nevertheless, the Defendants failed to discharge the truthfulness of the publication as may be juxtaposed as against the evidence by **PW3**, who was the Plaintiff’s immediate superior. 4. 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.”* 1. 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.* 1. Applying my mind to the above proclamation firstly-; while the sale of the EACC offices may have been a matter of public interest, the Defendants failed to place or call any evidence to shore up that the Plaintiff’s suspension was a matter of fact. Secondly, the impugned article seemed to impute as a matter of fact that given the Plaintiff’s act of hiding information on acquisition of the Anti-corruption office he was suspended. 2. Thirdly, PW3 appears to have deflated the Defendant’s defence premised on truth and fair comment, in light of his evidence that the Plaintiff was never suspended and that by dint of his position as Deputy Chief Executive Officer, Technical Services, the Plaintiff could not have been involved in the sale of the EACC office 3. Fourthly, on the backdrop of the above, I am inclined to agree that the imputation created by the article would have in all probability reasonably been 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, that the Plaintiff was somewhat corrupt or the imputation pleaded at 6 of the Plaint. 4. 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).** 5. As to the defence of qualified privilege, here, in my estimation 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 prematurely false, the said defence would be unsustainable. In **Uhuru Muigai Kenyatta** (supra) 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.”* 1. Notwithstanding the aforestated, **DW1** on cross examination, confirmed being familiar with the *Media Code of Conduct*. The C**ode 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”.** 1. No evidence was offered by the Defendants demonstrating their compliance in this instance with the Code of Conduct and or that the publication was made without any malice and or bias. 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.”* 1. 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 or dramatize the publication, and must have compounded by falsity of the publication, it can be stated that the Defendants actions were clearly reckless and malicious in so far as the broadcast falsely imputed against the Plaintiff serious and or criminal conduct that ordinarily would invite penal sanctions, all without first verifying and or justifying the true facts. 2. Consequently, in view of the above, the Court believes that the Plaintiff’s grievance is merited and that the impugned article was indeed defamatory of and concerning the Plaintiff, for which the Defendants are therefore found to be liable for defamation. ***Whether the Plaintiff is entitled to an award of damages and if so, the quantum?*** 1. 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.”* 1. 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.”* 1. 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 **PW2, PW3** and **PW4’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 Defendants have 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. 2. 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*.” 3. 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.”* 1. Here, it is not in dispute that the Plaintiff as at publication was an Advocate of the High Court Kenya and serving as Deputy Director of the EACC with relative prominence. Therefore, taking guidance from the persuasive decision in **Muthaura v Nation Media Group Ltd & Another [2025] KEHC 2386 (KLR)** *wherein the claimant (held various respectable positions in the public service was awarded Kshs. 6,000,000/-*, **Michael Kamau Mubea v Nation Media Group Ltd & 2 Others [2019] KEHC 9251 (KLR)** *wherein the Plaintiff was the claimant was 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**. 2. 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.”* 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*” 1. 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…’’* 1. 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. 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. 2. The Plaintiff also seeks that the Defendant make a full and unqualified apology, make amends and withdrawal of the said complained of article and such apology amends and withdrawal to be given the widest possible prominence and circulation, similar to the complained article, the text and substance thereof to be approved by the Plaintiff. 3. Here, the Court notes that the purported defamatory article was published over ten (10) 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*** 1. **Accordingly, the Court finds and holds the Defendants jointly and severally liable for the tort of defamation against the Plaintiff, and enters judgment in favour of the Plaintiff against the 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.** **On costs, 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 Defendants.** **Orders accordingly.** **Delivered Dated and Signed at Nairobi this 4th Day of June 2026.** **……………………….** **JANET MULWA.** **JUDGE**