https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9166

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL DIVISION** **CIVIL APPEAL NO. E008 OF 2025** **ERASTUS MUTISO.………………………….………. 1ST APPLELLANT** **PETER MBITHI ...………………….………….………. 2ND APPLELLANT** **VERSUS** **MORRIS NGILE MULUMBA……………...………….… RESPONDENT** ***(Being an appeal from the ruling of Hon. Benson Ireri PM dated 30th October, 2023 at the Magistrates Court at Makindu in Civil Case No. E123 of 2023)*** **JUDGMENT** 1. This appeal arises out of the decision of **Hon. Hon. Benson Ireri PM**in Makindu Chief Magistrate’s Court Civil Suit No. E123 of 2023; where the Respondent sued the Appellants claiming general damages for defamation, exemplary and/or aggravated damages for defamation, a declaration that the Respondent and his family are entitled to a retraction of the defamatory words and suitably worded apology published in two widely circulated local newspapers and all his social media platforms 2. An order directing the Appellants to immediately publish a suitably worded apology in two of the widely circulated local newspapers and on all his official social media platforms 3. An injunction restraining the appellants from further uttering or causing to be uttered the words referred in paragraph 4 of the Plaint or any other similar words defamatory to the Respondent and his family 4. Costs of the suit 5. Any other and/or further relief that the court may deem fit to grant. 6. In the trial court, the Respondent via Plaint dated 15th August, 2022 averred that the appellants herein falsely, maliciously and with intent to injure the plaintiff and his family’s reputation published defamatory statements in a whatsapp group called unity bank home with a membership of more than 21 members representing the larger Mtito Andei area to wit; “Mulumba family is full of conmen; everyone is a conman including the children born yesterday” “Conmen washindwe. If they are law abiding, they would have taken the route taken by their ilk Mutua Mulumba who quit in a huff” “If I go missing, my brother Ngile Mukumba is the man to watch” “You made Ngile Mulumba a pastor. Ngile ni mwizi wa Mashamba. As we talk, he has conned Mwai Nzuki, Kithitu Ki Nziani. I assure you” “I am a very corporate public officer. Let’s hold those alleged conmen to account and follow due diligence. Why? Lack of basic education among some members is a major inhibition to our efforts to deal with issues of drop outs killing our group and standing out there to laugh at us good meaning members.” “This discourse has been an eye opener. We see who among us are with conmen. Shame on them. I am so ashamed of sharing a table with spanner boys and semi illiterate conmen and miscellaneous graduates graduates whose parents never invested in any level of education.” Until conmen came up, pretending to be good people. We gave them our trust. And they took advantage of us. It is payback time.” 1. The Respondent said that the defamatory remarks were published on numerous occasioned in the said whatsapp group and continue to be published and screenshots shared on social media platforms which continue to injure his reputation. He said that the words and statements were intended to and did portray him and his family as persons who are dishonest, dangerous, lacking integrity and morality and bringing ridicule to him and his family. He said that they discredited him, exposed him to contempt and lowered his opinion in the eyes of the right-thinking members of society. He particularised defamation at paragraph 6 of the plaint and said that as a result of the said defamation, his reputation as well as that of his family and affected his esteem, credibility and reputation. He said that he had been brought into public scandal, odium, ridicule, contempt and caused them anxiety, mental agony, distress pain, considerable loss and damage. 2. He said that he reported the said publishing of the defamatory remarks at Mutito Andei Police station on 11th July, 2022 under OB No. 14 and recorded statements with the DCI. He also recorded statements with his advocate and a letter dated 14th July, 2022 warning the Appellants against publishing defamatory remarks against the Respondent and demanded an apology which letter was served upon the appellants but they ignored it. 3. The Respondent said that the offensive remarks were published and viewed in numerous social media channels including but not limited to facebook and WhatsApp and as a result, his name and that of his family has been brought to ridicule and exposed to hatred and contempt in the eyes of right thinking members of society. He prayed that judgement be entered in his favour as prayed. 4. The Defendants despite being served with summons to enter appearance and pleadings herein neither entered appearance nor filed defence. The matter proceeded undefended. 5. The trial Magistrate considered the evidence tabled before him and entered judgement in favour of the Respondent. He awarded a sum of Kshs. 400,000 in general damages and Kshs. 100,000/- in aggravated damages. 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 considering the evidence produced by the Respondent even though it was insufficient to prove defamation. 2. THAT the Trial Magistrate erred in law and fact by allowing production of inadmissible electronic evidence produced by the Respondent contrary to the rules of evidence. 3. That the Trial Magistrate erred in law and fact by not considering whether or not the Respondent met the threshold required to prove defamation. 4. That the Trial Magistrate erred in law and fact by shifting the burden of proof to the defendants whilst the Plaintiff failed to discharge his burden of proof to the required standard. 5. That the Trial Magistrate erred in law and fact by awarding Kshs. 500,000 as general and exemplary damages for defamation with interest at court rates, which was manifestly excessive. 6. That the Trial Magistrate erred in law and fact by awarding Kshs. 500,000 as general and exemplary damages for defamation whilst the Respondent failed to prove why damages should be awarded in the absence of evidence from other ‘right thinking members of society and reputational/economical damage suffered. 7. That the Learned Trial Magistrate erred in assessing damages and failed to apply the principles applicable in award of damages and comparable awards made for analogous injuries. 8. That the Learned Trial Magistrate erred in assessing damages and failed to apply the principles applicable in award of damages. 7. 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 This appellant sought to have the appeal allowed, the trial court’s judgement and decree delivered on the 30th of October 2023, be set aside and/or reserved and that this court strikes out the Respondent’s suit in totality with costs to the appellant. 2. In the trial court, PW1 Morris Ngile Mulumba testified that he is a businessman in Nairobi and lives in Saika on Kangumdo rad. He said that he recorded his witness statement dated 15th August, 2022 which he prayed that it be adopted as his evidence in chief. He also relied on his bundle of documents dated the same and admitted in evidence as Plaintiff’s exhibits 1-3. He prayed that judgement be entered in his favour as prayed in his plaint. 3. His evidence in his witness statement is a replication of his averments in the plaint. He said that the Appellant recorded the offensive remarks which were viewed, published and viewed in several social media channels including whatsApp and facebook and said that due to the offensive and defamatory remarks, his character and that of his family was brought to ridicule and his opinion was lowered in the eyes of right thinking members of the society. He prayed for general damages for defamation, exemplary damages, a retraction of the remarks and a public apology from the Appellants. **Analysis and Determination** 1. The appealed was disposed off by way of written submissions. The Appellant’s submissions are dated 15th may, 2026 while those of the Respondent are dated 5th May, 2026. **Appellants submissions** 1. The Appellants condensed their appeal into four issues for determination, namely: whether the trial Magistrate erred in law by admitting and relying on electronic evidence in the form of screenshots that were not authenticated by a certificate as required under Section 106B of the Evidence Act (Cap 80); whether the trial Magistrate erred in law and fact in finding that the Respondent had discharged the burden of proving the essential elements of defamation, including defamatory meaning, identification, publication, and injury to reputation; whether the trial Magistrate erred in law and fact by shifting the burden of proof to the Appellants and treating their failure to appear as conclusive proof of the Respondent’s case; and whether the trial Magistrate erred in law and principle in the assessment of damages, resulting in an award of Kshs. 500,000/= that is manifestly excessive. 2. On the 1st issue, the Appellant relied on Section 106A, 106B (1 ) and 106B (4) of the Evidence Act (Cap 80) and impugned the admissibility of the whatsApp screenshots arguing that there ought to have been a certificate describing the manner in which it was produced; giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; dealing with any of the matters to which the conditions mentioned in subsection. He said that the requirement of a certificate under Section 106B (4) is not merely procedural but that it is a substantive condition of admissibility designed to ensure that electronic records produced in court are authentic, unaltered, and reliably generated. He said that a court that admits electronic evidence without such a certificate, acts contrary to the law and the admission cannot cure the underlying inadmissibility. 3. The appellant argued that the Respondent's primary and only evidence of the alleged defamatory publication was the screenshots of WhatsApp messages produced as Exhibit which are plainly electronic records and images of digital messages generated, stored, and reproduced by a computer or mobile device. He said that and that PW1 simply adopted his list of documents dated 15th August 2022 and produced the screenshots as Exhibit 1 without any authenticating certificate. He said that the trial Magistrate admitted Exhibit 1 without any reference to, or inquiry into, compliance with Section 106B and based the entire finding of publication exclusively on those screenshots. He said that the adoption and reliance of the screenshots cannot reliably establish the author of the messages, whether the message is unaltered, the date and time of publication; the identity of the group members who received the messages and whether the device from which the screenshots were taken was operating properly. He argued that the technical issues raised go to the very heart of the proof of publication and identification, which are essential elements of defamation. 4. The appellant further argued that the defamatory statements set out in the plaint and reproduced in the judgment do not carry a clear attribution to either the 1st or 2nd Appellant by name hence they could not be attributed to them. They concluded that the admission of the unauthenticated screenshots as Exhibit 1 was an error of law hence their appeal should be allowed. 5. On the 2nd issue, the appellants relied on **Swanya v Toyota East Africa Ltd & another** [2009] KECA 379 (KLR) and submitted that the essential elements of defamation that the plaintiff must prove are: 1. defamatory character of the matter complained of; 2. publication to a third party; 3. malice; and 4. in slander, special damage. They said that the four elements must be affirmatively established. 1. The Appellants further said that the court in defamation matters should ask what a reasonable person to whom the words were published would have understood them to mean. They relied on Halsbury's Laws of England, 4th Edition, and argued that they said that they did not deny that several of the words complained of are, on their face, capable of bearing a defamatory meaning if attributed to the Respondent but stated that the statement "I am a very corporate public officer. Let's hold those alleged conmen to account and follow due diligence. Why? Lack of basic education among some members is a major inhibition to our efforts..." did not name the Respondent but rather spoke of "alleged conmen" in the plural and in a generic sense. 2. The Appellants said that the trial Magistrate did not specifically analyse whether this statement referred to or identified the Respondent and that its author identified himself as "corporate public officer". He said that neither of the Appellant's occupation is established on the record, making attribution and identification questionable. They further argued that the statement "If I go missing my brother Ngile Mulumba is the man to watch" was interpreted by the trial magistrate to mean that the learned Magistrate interpreted this as meaning the Respondent "is a criminal capable of forcing disappearance of the Defendants and that he is dangerous and armed." He said that the interpretation went beyond the natural and ordinary meaning of the words. He also impugned the trial courts interpretation of the phrase "is the man to watch" and said that they imputed homicidal capability and possession of weapons is an error of construction that inflated the perceived gravity of the libel. The appellants finally impugned the meaning the statements contained in paragraphs (vi.), (vii.) of the particulars of defamation as set out in the plaint and said that they made no make no specific reference to the Respondent by name. They said that by not expressly naming of the Respondent, the statements could be said to refer to him. He said that the Respondent ought to have proved that the words were communicated to at least one person other than the plaintiff himself. 3. The Appellant said that in cases of allegations of defamation on a WhatsApp group, the Respondents ought to have proved that the specific words were indeed published in that group and received by members thereof. Submitting on injury to reputation, the Appellants said that while actual damages need not be specifically proved in a case of libel, the Respondents ought to have at least demonstrated that the words complained of were of such a character as would tend to lower him in the estimation of right thinking members of society. They said that the Respondent's entire case on harm rested exclusively on his own testimony as no member of the Unity Bank Home WhatsApp group testified to having read the messages, understood them in a defamatory sense, or changed their view of the Respondent. They said that the Respondent never called on any business associate, employer, colleague, or community member gave evidence of reputational harm. He never adduced evidence of lost business, severed social or professional relationships, or any specific incident of being treated with reduced regard hence the respondent failed to prove several of the essential elements of defamation to the required standard. 4. On the 3rd issue on whether trial Magistrate erred in law and fact by shifting the burden of proof to the Appellants, the Appellants relied on Section 107(1) of the Evidence Act (Cap 80) and stated that the burden of proof in a civil suit lies on the party who asserts the existence of a fact, and the standard is proof on a balance of probabilities. They argued that the rule that a plaintiff in an undefended suit must still affirmatively prove his case is fundamental and not merely procedural. They argued that their non-appearance was not an admission of liability and did not relieve the Respondent plaintiff of the obligation to establish each element of his cause of action by admissible evidence. They said that in an undefended matter, the court must independently scrutinise the evidence to satisfy itself that the plaintiff has discharged the burden of proof. They said that the wording of the judgement particularly on their failure to challenge the evidence implied reversal of the burden of proof and argued that the trial magistrate ought to have tested whether Exhibit 1 was admissible under the Evidence Act; assessed whether the words, properly attributed to named defendants, were defamatory in their ordinary and natural meaning; whether publication to persons other than the Respondent was proved by admissible evidence; considered whether malice was specifically established; and whether there was any evidence of injury to the Respondent's reputation before arriving at his determination. They said that the trial Magistrate's approach fundamentally misapplied the rules of evidence and civil procedure as the burden of proof in a civil suit never shifts merely by reason of the defendant's non-appearance. 5. Finally, on the last issue of whether the learned Magistrate erred in law and in principle in the assessment of damages, the appellants argued that where damages are made in the alternative, and without prejudice to the primary submission that the judgment ought to be set aside entirely. They relied on the Court of Appeal’s decision in **C A M v Royal Media Services Limited** [2013] KECA 178 (KLR) where the court held that no two cases are alike and that the court has wide latitude, guided by the factors enumerated in **Jones v Pollard** [1997] EMLR 233, which Authority was applied in **Nganga v Matheri** [2023] KEHC 2346 (KLR). These factors include: the objective features of the libel itself, such as its gravity; the province or nature of the publication; the circulation of the medium; the repetition; the subjective effect on the plaintiff's feelings; and matters tending to mitigate damages. 6. The Appellants further relied on **John v MGN Ltd** [1996] 2 All ER 35, where the court held that general damages in defamation must compensate for injury to reputation, vindicate the plaintiff's name, and take account of distress, hurt, and humiliation. However, damages must be proportionate to the actual harm proved. They argued that aggravated damages are appropriate where the defendant has acted with improper motive - such as malice, insistence on a false defence of justification, or deliberate failure to retract - and the conduct has aggravated the plaintiff's injury. 7. In reference to the case of **Juma Mikidadi v Ali Khalfan & another** [2004] KEHC 2665 (KLR) the Appellants submitted that is a standout exemplar of how the Court exercises its discretion with cautiously stating that an appellate court will interfere with a damages award that is disproportionate, based on a wrong comparator, or unsupported by evidence of harm. They impugned the trial court’s reliance on the award in **Hon. Uhuru Muigai Kenyatta v Baraza Limited** [2011] KEHC 1506 (KLR), and argued that it had no resemblance to the present matter as it a Head of State being publicly defamed in a national media publication with national circulation. They said that the Respondent in this case is a private businessman; the publication was in a WhatsApp group of 21 members; and there is no evidence of national or widespread repetition hence the trial Magistrate award was unsustainable and must be reduced. They argued that there was no prove whether the demand letter was received and acted upon at any specific time hence their failure 8. The appellants prayed that the appeal herein be allowed, the judgment and decree subject of this appeal be set aside and/or reversed in its entirety, that the strikes out the Respondent's suit in its totality and/ or in the alternative to the damages awarded be reduced to a sum consistent with the evidence before the trial court and the applicable principles for analogous cases. They also prayed for costs of the appeal. **Respondent’s Submissions**: 1. On their part, the Respondents gave a summary of the appeal and stated that the Appellants were duly served but chose not to enter appearance or file defence. He said that the matter proceeded to formal proof and judgement was entered. He acknowledged that this being the 1st appeal, this court should consider and independently evaluate the evidence bearing in mind that it neither heard nor saw the witness testify. 2. The appellant stated that upon entry of judgement, he notified the Appellants of its entry after which the Appellants instructed their counsel on record to seek stay of execution which was granted on condition that half of the decretal amount be deposited in court. They said that the said judgement had not been set aside and that the Defendants have never filed their defence to date. He relied on Order 10 rule 9 of the civil procedure Act and said that instead of seeking to set aside the said judgement, the Appellants rushed to court to appeal against the same. He said that the Defendants can only defend the suit once the exparte judgement that the Appellants would be allowed to set aside the judgement. 3. The Appellants relied on **Matumbi v Tanui** [2026] (KLR) where the court outlined the principles governing the award of damages in defamation cases as to compensate the claimant for injury, to reputation, to console the claimant for distress and anxiety and to vindicate the claimant’s reputation in the eyes of the public. He further relied on Butt vs. Khan [1982] KLR and said that nothing had been placed before court to prove that the trial magistrate proceeded on the wrong principles of the law. They urged the court not to interfere with the trial magistrate’s findings. 4. The Respondent also impugned the Appellants failure to attach the decree in their appeal and argued that the same rendered the appeal fatally defective as was held in **Chege V. Suleiman** [1998] eKLR. The Respondent prayed that the Appeal be dismissed **Analysis and determination**. 1. The appeal was disposed by way for written submissions which I have read and considered. The main issue for determination are; * 1. Whether the Learned Trial Magistrate erred in law and fact in finding that the Respondent had proved the claim of defamation, notwithstanding the alleged insufficiency of the evidence and the failure to satisfy the legal threshold for defamation. 2. Whether the Learned Trial Magistrate erred in law and fact by admitting and relying on inadmissible electronic evidence contrary to the applicable rules of evidence. 2. In his judgement, the trial magistrate relied on the WhatsApp screen shots as tendered by the Respondent as Exhibit 1. The Appellant impugned the admissibility of the said screenshots on grounds that the whatsApp screenshots as tendered in evidence did not meet the threshold as provided in Section 106A, 106B (1) and (4 ) of the Evidence Act which makes it mandatory for Electronic evidence be authenticated by a certificate . 3. 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 there is no certificate of authentication of the whatsApp print out. The Respondent tendered three documents in support of his case at the trial court to wit the WhatsApp screenshots, the Demand letter allegedly sent to the Appellants and the Police OB number. I therefore find that the Respondent having failed to file a certificate of authentication of the 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. On the second issue on whether the Learned Trial Magistrate erred in law and fact by admitting and relying on inadmissible electronic evidence contrary to the applicable rules of evidence, I have already found that the authenticity of the whatsapp screen shots was not proved. Much as the Respondent argued that the Appellant’s case in the trial court was not opposed, this court is alive to the dicta 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 evidence in the trial court was not challenged. I have gone through the Respondent’s testimony both in court and on his witness statement and note that no evidence was tendered as to the ownership of the Appellant’s telephone numbers/whatsapp accounts. It is therefore difficult to ascertain whether the said account did belong to the appellant. I therefore find and hold that the fact that the Respondents evidence was not challenged does not amount to admissibility of inadmissible evidence par law. 2. Finally, the Respondent stated that the Appellant attached the trial court’s decree which is fatally defective to their appeal. I have perused the Record of appeal and note that the Appellant filed the trial court’s decree at page 58 of the record of appeal. 3. The Upshot is that the Appellant’s appeal is merited. I consequently allow the appeal and set aside the trial court’s judgement on grounds that the Respondent did not tender a certificate of authentication of the screen shots under section 106 of the Evidence Act. 4. On costs, it is trite law that costs follow the event. The Appellant will get the costs of the appeal. 5. It is so ordered. Right of appeal 30 days. Dated, signed and delivered via TEAMS at Nairobi on this 26th day of June, 2026. **………………….….** **ROSELINE OGANYO** **JUDGE** **In the presence of: -** **Court Assistant…. E, Sana.** Counsel for the Appellant…. Miss Komoing Counsel for the Respondent…. Mr. Mwema**.** Miss Komoing-We had deposited a security of Kshs. 250,000/-. May the court grant directions on the same. **Order.** The security of Kshs. 250,000/- as deposited in court to secure the stay of the lower court’s decree is hereby ordered to be released to the depositor as prayed for. **………………….….** **ROSELINE OGANYO** **JUDGE**