[2022] KEHC 15192 (KLR)

Mulandi & another v Makiti & another (Civil Appeal 81 of 2019) [2022] KEHC 15192 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15192 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 81 of 2019

GMA Dulu, J

November 10, 2022

Between

Newton Mulandi

1st Appellant

Nduku Makovu

2nd Appellant

and

Nzomo Makiti

1st Respondent

Muli Makiti

2nd Respondent

(Being an appeal from the original judgment of Hon. J.D Karani in Makindu Senior Resident Magistrate’s Court Civil Case No. 35 of 2018 delivered on 25/09/2019)

Judgment

1. In a judgment delivered on 25th September 2019, the trial magistrate found that the appellants, who were the plaintiffs in the trial court, had not proved their claim in defamation and concluded as follows –“From the evidence on record, the same was not proved. The plaintiff failed to show the reputation that existed in the first place that had now been disrupted by virtue of the words spoken. There was no proof that there was shunning from the public or even family members. In fact as much as I agree that the words spoken were utterly disrespectful, I found the same to amount to mere abuses and could not meet the threshold of defamatory statements ---I find that the plaintiffs have failed on balance of probability to prove that the words uttered were defamatory. I shall not award damages.If infact the same would have been successful, the court would have awarded damages at Kshs.50,000/= for each plaintiff.In the upshot I find that the plaintiffs have failed to discharge their evidentiary burden thereof and the suit herein is dismissed with costs to the defendants.”

2. Dissatisfied with the above decision of the trial court, the appellants have come to this court on appeal through counsel M/s Mulwa Isika & Mutia advocates on the following grounds –1)That the learned magistrate misdirected herself in completely disregarding the appellants’ case and did not address her mind to the real ingredients of defamation.

2)The learned trial magistrate erred in law and facts in failing to evaluate the evidence tendered judicially.

3)The learned trial magistrate erred in law and fact in finding that the words complained of were not defamatory and that they were just mere abusive words

4)The learned trial magistrate erred in law and fact in finding that the appellants had not proved their case on the required standard.

5)That the learned magistrate erred in both law and fact in finding that the words uttered do not meet the threshold for a defamatory matter.

3. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Immaculate Ongonga advocate for the appellants and the submissions filed by Kasyoka & Associates for the respondents. Both counsel cited decided court cases.

4. This being a first appeal, I am required to reconsider the evidence on record and come to my own independent conclusions.

5. From the evidence on record, the allegations against the respondents were that they uttered and published in a meeting before the Chief in Kikamba language words to the effect as follows:-“Yii ni ilwaya ya kalindalu waiyite mwambasa nayu ayite ayinege mali ya makovu”Translated into English to mean“This is Kalindala’s prostitute he kept whilst he was in Mombasa and now he has brought her to give her Makovu’s property”

6. I note that, though the chief in whose office and meeting was not called to testify in court, the learned magistrate found thatinfact the words were spoken, but found that the said words were merely abusive and did not satisfy the ingredients of the tort of defamation.

7. I note also that the respondents neither filed a cross appeal to challenge the magistrate’s finding that they uttered the said words, nor did their counsel challenge the alleged words in cross-examination of witnesses.

8. From the evidence on record therefore, just like the trial magistrate, I find that the alleged words were indeed uttered by the respondents as alleged.

9. The question before this court therefore is whether the said words were defamatory.

10. As was stated in the case ofDaniel Mutunga Nzoka v Duncan Kisilu Singi [2012] eKLR based on Winfield & Jolowisc on Torts – the elements of defamation are –a)The words complained of must refer to the plaintiff.b)The words must be defamatory i.e. must tend to actually lower or actually lower the character or reputation of the plaintiff in the eyes of right thinking member of the society.c)The words must be published to a third party.d)The words must be false.e)For slander, there must be proof of resultant damage

11. In the present case, the words alleged to be defamatory were not written but merely spoken words. Therefore they are in the class of slander. The question thus is, was there proof of resultant damage or was it just abusive or rude words between relatives, as found by the magistrate?

12. In my view, the words used herein were in the category of sexual immorality between close relatives. The words imputed an inappropriate sexual relationship between relatives, and thus amounted to defamation against both appellants. The appellants did not have a burden to prove their chastity as found by the magistrate, as what brought them to court was not their chastity but the words allegedly uttered by the respondents, whose utterance they were to prove on the balance of probabilities.

13. In my view, the appellants proved on the balance of probabilities that the words complained of were uttered by the respondents, that the said words were uttered to third parties, and that the words in their ordinary meaning lowered or had the effect of lowering the reputation of the appellants before right thinking members of the community. I will thus set aside the finding that the words were not defamatory, and enter a finding that the words were defamatory.

14. What about damages? The trial court found that the damages to be awarded would be Kshs.50,000/= for each of the appellants.

15. In my view, the words uttered being an exchange of words between relatives before the chief, I find that the amount of damages assessed by the trial magistrate, is an adequate amount. I will thus award the appellants damages of Kshs.50,000/= each appellant for defamation.

16. Consequently, and for the above reasons, I allow the appeal and order as follows –i.I set aside the subordinate court’s judgment dated 25/09/2019 dismissing the appellants’ suit.ii.I enter judgment in favour of the appellants for defamation.iii.I award each of the two appellants damages for defamation of Kshs.50,000/= payable by the respondents’ jointly and severally.iv.The respondents will pay the costs of the suit and appeal to the appellants jointly and severally.

DELIVERED, SIGNED & DATED THIS 10TH DAY OF NOVEMBER, 2022, IN OPEN COURT AT MAKUENI.............................GEORGE DULUJUDGE