[2023] KEHC 27536 (KLR)

Nairobi City Water & Sewerage Company Limited v Munyithya & another (Civil Appeal 90 of 2019) [2023] KEHC 27536 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27536 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 90 of 2019

F Wangari, J

November 17, 2023

Between

Nairobi City Water & Sewerage Company Limited

Appellant

and

Justus Maithya Munyithya

1st Respondent

Geofrey Majiwa

2nd Respondent

(Being an Appeal against the Judgement and Decree of the Honourable Court (the Honourable E.K. Makori, Chief Magistrate) delivered on 3rd April, 2019 in Mombasa CMCC No. 1255 of 2016)

Judgment

1. This is an appeal from the judgement of the Learned Chief Magistrate Hon. E.K. Makori (as he then was) in Mombasa CMMC 1255 of 2016 delivered on 3rd April, 2019.

2. The Appellant being dissatisfied with the said judgement preferred the present appeal and raised four (4) grounds of appeal which are set out as follows: -a.That the learned trial magistrate erred in law and fact in finding liability against the Appellant yet there was no evidence in support;b.That the learned trial magistrate erred in law and fact and misdirected himself in failing to consider the submissions by the Appellant together with the authorities relied on by the Appellant;c.That the learned trial magistrate erred in law and fact and misdirected himself in awarding the 1st Respondent damages totaling to Kshs. 5,000,000/= which amount is excessive in the circumstances;d.That the learned trial magistrate wholly erred in law and fact in arriving at his said decision;

3. The Appellant thus prayed that the appeal be allowed, the Respondents to pay costs of the appeal and such other further relief as may appear just to the Honourable Court.

4. This being a first appeal, this court is under a duty to re-evaluate and re-assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

5. This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd [1968] EA 123 and Peters v Sunday Post Limited [1985] EA 424 where in the latter case, the court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

6. In Livestock Research Organization v Okoko & another (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR) (29 June 2022) (Ruling), Justice R. E. Aburili, J. held as follows;In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal stated that: “[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”

7. This is a case founded upon the tort of defamation as can be discerned from the pleadings. From the record, it is not in contest that the 1st Respondent’s case was advanced by four (4) witnesses. The Appellant did not call any witness and its case was therefore closed without any testimony in support of their defence and in rebuttal to the 1st Respondent’s case. The court shall thus proceed to re-analyse the evidence before the Trial Court.

Summary of the Evidence 8. Justus Maithya Munyithya, the 1st Respondent herein testified as PW1. He stated that he was a lawyer practising in the name and style of Munyithya & Company Advocates. He was equally a Certified Arbitrator and also a member of CPS (K). He adopted his witness statement and produced documents in support of his case. Briefly, he stated that he had been invited by the Appellant on 27/5/2010 to preside over their Annual General Meeting (AGM) which was to be held on 29/5/2010 at Nyali Beach Hotel. He was to sit in as the Company’s Secretary. On arrival at the venue, the meeting was called to order and members were asked to introduce themselves starting from the directors who included the 2nd Respondent.

9. After introducing himself and tendering his letter of instructions, he was said to be part of the cartel of lawyers who were crippling the company. He quoted the exact words said by the 2nd Respondent. The words were spoken by the 2nd Respondent in his capacity as a director of the Appellant as well as on behalf of shareholders. It was in full view of the press and the words were publicized. It was aired on Citizen TV and NTV and published in Star Newspaper as well as the Nation Newspaper of 31/5/2010 . According to him, the words uttered meant that he was corrupt, part of people benefitting from the company and could thus not carry out the work given. He gave his professional, academic and other achievements to demonstrate that he was a person of standing.

10. According to him, the words had the effect that he could not be globally, regionally or locally trusted. He lost clients among them corporate who called him to find out if the words were true which he denied. He confirmed making a demand to ask for an apology but none came. He thus sought for general and aggravated damages.

11. On cross examination, PW1 confirmed that his duty for the meeting was secretarial. The 2nd Respondent was representing the Appellant and he was named as one of the directors. Referred to the programme, the witness stated that in corporate governance, the chairman had to take charge. The chairman talked first and thereafter; the 2nd Respondent took charge. He confirmed that the 2nd Respondent was a mayor and that councillors used to behave like that then. Referred to the Star Newspaper, he stated that it had been claimed that he was one of the cartels misadvising the Appellant. He denied any unethical conduct on his part on that day. He stated that the word cartel meant he was among a group causing trouble.

12. On his appointment, PW1 stated that he was not aware that media was to be present. He stated that the publication was not independent as the directors were directing all the media briefing. He confirmed that the Appellant wrote and apologized to him. On re-exam, he confirmed that the words were written without any inquiries made. The 2nd Respondent was one of the key speakers and a director of the 1st Defendant.

13. Victor Were, a company secretary testified as PW2. He confirmed knowing the 1st Respondent for over ten (10) years. He adopted his witness statement. He was aware of the incident and that his view of the 1st Respondent was different as he developed doubt in his intergrity. He thought of the 1st Respondent as someone of low moral standing and that it was difficult to refer clients to the 1st Respondent after what transpired. Some clients started questioning him on the 1st Respondent’s character. He confirmed that the 1st Respondent was held in high esteem as a professional colleague to the extent that they elected him Committee Member of their association in Mombasa Branch.

14. On cross examination, he confirmed watching television (TV) on the fateful evening specifically NTV when he saw the 1st Respondent and one Evans being harassed by people he came to understand were councillors. They were being called thugs. He saw the same news at 9pm at KTN and read in a newspaper the following day. He took interest because he was a professional colleague. He stated that he did not know the 2nd Respondent at the time. He confirmed that he would no longer refer clients to him.

15. On re-exam, he confirmed that 7pm news was run by NTV and the 9pm news was by KTN. He stated that he was purchasing newspapers every day. He indicated that the utterances were that he was among the cartels defrauding the Appellant and that these words were not true.

16. Celina Chebet Egesa, an Advocate of the High Court of Kenya testified as PW3. She confirmed having previously worked with the 1st Respondent who was then her boss. The firm was called Kioko Munyithya & Ngigi and was based at NSSF Building. She accompanied the 1st Respondent on 28/5/2010 where she was to take minutes. She adopted her witness statement which she indicated reflected what happened. She stated that the occurrences which transpired had negative effects as they were chased from the premises. People knew them as conmen and it had a bad effect. She confirmed that as an intern, she could tell that the 1st Respondent was diligent and a responsible member of the society to deserve to be called a conman.

17. On cross examination, she confirmed that she had accompanied the 1st Respondent to perform secretarial services. She stated that words were uttered and that the 2nd Respondent said they were strangers. The 1st Respondent introduced himself and the services he was offering but the 2nd Respondent stated that he knew advocates are conmen. The 2nd Respondent appeared to have been in-charge. He was the Appellant’s representative though she could not tell his capacity. In re-examination, the witness stated that the 2nd Respondent addressed them as the in-charge of the session and his relationship with the Appellant was that by virtue of being a mayor, he held a position in the Appellant. She reiterated that she got to know the 1st Respondent as a responsible person in society.

18. Maureen Mudi, a journalist with Radio Africa Group and the Star Newspaper testified as PW4. She was referred to the Star Newspaper of 29/5/2010 and she confirmed that she was the one who reported it. The venue was Nyali Beach Hotel. The witness quoted the exact words spoken by the 2nd Respondent to the effect that the 1st Respondent was part of the cartel causing trouble. She stated that she understood the 2nd Respondent’s comments to mean that the 1st Respondent was a fraud and corrupt, not appointed or appointed illegally or not appointed at all. On newspaper sales, she confirmed that they sell much on Saturday.

19. On cross examination, she confirmed that she was at the meeting though had no specific invitation. What she reported was in the public interest. She confirmed that the words were spoken by the 2nd Respondent and that she reported verbatim. As such, she did not seek clarification from the 2nd Respondent as what she had reported was verbatim. She confirmed that the words were defamatory and that is why she placed them in quotes. She equally stated that Star Newspaper has wide circulation.

20. On re-exam, she reiterated that she needed no clarification since it was verbatim. The 2nd Respondent was addressing the press and thus no further clarification was needed. That marked the close of both the Appellant and the Respondents’ cases. Parties filed submissions and the court thereafter proceeded to render the impugned judgement which precipitated this appeal.

21. Directions were taken that the appeal be canvassed by way of written submissions. Both the Appellant and the 1st Respondent duly complied by filing detailed submissions together with citing various decided cases in support of their rival positions. The Appellants’ submissions are dated 9th January, 2023 and filed on 18th January, 2023. The 1st Respondent’s submissions are dated 27th January, 2023 and filed on 3rd February, 2023. The 2nd Respondent never participated either before the Trial Court or in this appeal

Appellant’s Submissions 22. The Appellant restated the role of this court on appeal and cited various decided cases elucidating the position. Having done so, the Appellant then highlighted three areas and/or reasons it thought the Trial Court ought not to have found it liable. These were that; the Appellant was not involved in the making of the defamatory statements; the 2nd Respondent’s actions were not a reflection of the Appellant’s position and that the Appellant was not liable for the actions of the Respondent.

23. Submitting on the first limb, the Appellant began by defining what defamation is as per Winfield & J.A. Jolowicz and I. Ellis Lewis in Winfield on Tort, 8th Edition. Defamation was defined as the publication of a statement which tends to lower a person in the estimation of right-thinking members of the society generally or which tends to make them shun or avoid that person. The Court of Appeal decision in Wycliffe A. Swanya v Toyota East Africa Ltd & Another [2009] eKLR was cited as a guide on what are the elements of defamation. Among them was publication.

24. It was contended that the impugned statements were not made by the Appellant and that it was a subsidiary of City Council of Nairobi having been incorporated in December, 2003. Section 37 (2) (a) and (b) of the Companies Act, 2015 was cited to qualify when a document is considered to have been issued by the company. Order 9 Rule 2 (c) was equally reproduced to augment the above submissions. It was the Appellant’s contention that a company’s position would only be known if a document was signed on behalf of the company by two authorised signatories or by a director of the company in the present of a witness.

25. It was conceded that though the 2nd Respondent was the Appellant’s director, his actions during the meeting on 29/5/2010 were not sanctioned by the Appellant. The separate corporate entity of a company was introduced and that its actions have to be sanctioned by either the directors or shareholders. The case of East Africa Portland Cement Ltd v Capital Markets Authority & 4 Others [2014] eKLR was cited for the above proposition. It was thus contended that the 2nd Respondent’s statements were made without any authorisation by the Appellant.

26. The Appellant equally took issue with the manner of the 1st Respondent’s appointment. It was submitted that the Acting Managing Director having appointed the 1st Respondent in good faith, no malice could be subsequently inferred in the subsequent actions of the 2nd Respondent. The Appellant submitted that it was clear that the sentiments of the Acting Managing Director acting on behalf of the company and the 2nd Respondent were completely different and that perhaps the strong opinion difference was the reason for chaos at the general meeting

27. It was further submitted that it matters not that the Director of a company has undertaken an action. What matters is that the Company has not acted unless its officer has acted under authorization by its corporate seal. The case of Affordable Homes Africa Ltd v Henderson & 2 Others [2004] eKLR was cited for the above proposition. On the liability of the company, it was submitted that general tort principles make the directors personally liable if they have intentionally or negligently cause harm to third parties.

28. Judge Brady’s sentiments in Yavar Rzayev LLC v Roffman, Del Super. C.A S14L – 120 035 MJB (August 31, 2015) were reproduced on the corporate officers being directly liable for the torts they personally commit on behalf of the corporation or otherwise. The Canadian Bar Review Vol. 81 No. 2 was equally quoted together with the case of Whitehorse Distillers Limited v Gregson Associates Limited. It was thus concluded that the 2nd Respondent did not act on behalf of the Appellant when he made the statements and acted outside the scope of his authority by making the impugned statements.

29. On the award, the Appellant contended that the same was excessive. To buttress this point, the Appellant cited various cases such as Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLR on the guidelines for the award of damages and K L v Standard Limited [2014] eKLR on the proposition that in an action for libel, the trial court in assessing damages is entitled to look at the whole conduct of the Defendant from the time the libel was published to the time verdict is given.

30. Citing the authorities of Ken Odondi & 3 Others v James Okoth Omburah t/a Ombura & Co. Advocates and Mwangi Kiunjuri v Wangethi Mwangi & 2 Others [2016] eKLR, the Appellant submitted that having not made any defamatory statement, it was not liable to pay for any liability attached to the utterance of the defamatory words on 28/5/2010. The Appellant thus concluded the Learned Magistrate erred by failing to accurately interrogate the maker of the defamatory statement. It prayed that the appeal be allowed with costs.

1st Respondent’s Submissions 31. The 1st Respondent having adopted his submissions before the Trial Court similarly set out this court’s role on appeal and cited section 78 of the Civil Procedure Act and the Court of Appeal decisions in Seascapes Limited v Development Finance Company of Kenya Limited [2009] eKLR as well as Kiruga v Kiruga & Another [1988] eKLR. The 1st Respondent then proceeded to set his issues for determination which were; whether the trial court erred in finding that the Appellant and the 2nd Respondent were jointly and severally liable for defamation and whether the award of compensatory damages was excessive.

32. On the first issue, the court was referred to paragraphs 4, 7, 8 and 10 of the amended plaint. It was submitted that in the course of a scheduled annual general meeting of the Appellant, the 2nd Respondent in his capacity as the Chairman and director of the Appellant uttered in regard to the 1st Respondent a defamatory statement to the effect that “the lawyer is part of the cartel which is causing trouble at the Company and we do not recognize his appointment.” The said action, it was submitted, was binding on the Appellant and it was therefore jointly and severally liable. The Court of Appeal decision in S M W v Z W M [2015] eKLR was cited on the definition of a defamatory statement.

33. The case of P.K. Langat & Andrew A. Mondoh v Raphael M.A. Juma [2001] eKLR where the Court of Appeal held that directors are in the eyes of the law agents of the company for which they act was cited to buttress the issue of joint and several liability. In the said decision, it was held that where the directors make a contract in the name of or purporting to bind the company, it is the company, the principal, which is liable on it, not the directors, they are not personally liable unless they undertook personal liability.

34. On the legal burden of proof, the 1st Respondent relied on the decisions of Milka Akinyi Ouma v Kenya Power and Lighting Co. Ltd & Another [2020] eKLR and Mbuthia Macharia v Annah Mutua Ndwiga & Another [2017] eKLR. The 1st Respondent submitted that four (4) witnesses were called in support of his case and to this end, he referred the court to the relevant pages of the record where this testimony was contained. Pouring cold water on the Appellant’s end, it was submitted that other than filing the statement of defence, the Appellant did not adduce evidence to support its averments in the statement of defence and as a rebuttal to the 1st Respondent’s testimony together with that of his witnesses.

35. The 1st Respondent citing the Court of Appeal decision in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR submitted that evidence cannot be adduced by way of written submissions since submissions cannot take the place of evidence. To this end, it was submitted that the 1st Respondent’s case supported by evidence adduced on oath remains unchallenged and/or uncontroverted. The 1st Respondent further submitted that the evidential burden at the trial shifted when the 1st Respondent stated that the 2nd Respondent was the chairman and director of the Appellant, uttered the defamatory words against the 1st Respondent in respect of which vicarious liability is applicable thus the onus fell on the Appellant to discharge the evidential burden by proving that the 2nd Respondent was not its chairman and director.

36. The cases of Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR and Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR were further cited to buttress the issue of legal burden. It was urged that the Appellant having chose to rely on submissions as its evidence both before the Trial Court and this court cannot vitiate the Trial Court’s judgement.

37. On whether the award was excessive, the 1st Respondent took refuge in the Court of Appeal’s decision in Mwangi Kiunjuri v Wangethi Mwangi & 2 Others [2016] eKLR for the proposition that an appellate court will not interfere with the quantum of damages awarded by the trial court unless it is satisfied either that the trial court acted on a wrong principle of law or it has misapprehended facts or for any other reasons the award was inordinately high or low to represent a wholly erroneous estimate of the damages.

38. It was submitted that the defamatory statements greatly damaged the 1st Respondent’s reputation, a prominent Mombasa Lawyer, a certified public secretary and who before the defamation was held in high esteem by his peers. The case of Nation Media Group Ltd & 2 Others v John Joseph Kamotho & 3 Others [2010] eKLR was cited for justification to award compensatory damages to a successful Plaintiff as much as will compensate him for the damage to his reputation among others.

39. To justify the Trial Court’s award, the 1st Respondent cited the following cases: - Musikari Kombo v Royal Media Services Limited [2018] eKLR and Ken Odondi & 2 Others (supra) and thus concluded that the Trial Court neither acted on a wrong principle of law nor was the award excessive as advanced by the Appellant. The 1st Respondent thus sought for the Trial Court’s judgement to be upheld and the present appeal be dismissed with costs to the 1st Respondent. He further prayed that the funds held in the joint account between the two (2) counsel on record be released to his counsel.

Analysis and Determination 40. I have considered the appeal lodged, the submissions filed both for and against, the authorities cited as well as the law and I discern the following issues for determination: -a.Whether the Trial Court erred in finding that the Appellant and the 2nd Respondent were jointly and severally liable for defamation;b.Whether the award of damages was excessive;c.Who bears the cost?

41. On the first issue, there is no dispute that there was a scheduled annual general meeting (AGM) organized by the Appellant which was to take place on 29/5/2010 at Nyali Beach Hotel. The AGM was to be preceded by a shareholders’ meeting on 28/5/2010. Similarly, there is no contest that the 1st Respondent was engaged by the Appellant to provide company secretarial services during the AGM. The 1st Respondent despite being engaged was ejected out of the meeting after a scuffle ensued.

42. During the scuffle, the 2nd Respondent being a director of the Appellant uttered the following words “the lawyer is part of the cartel which is causing trouble at the Company and we do not recognize his appointment.” These words were reported by the Star Newspaper of 29/5/2010 and Daily Nation Newspaper of 31/5/2010. The words were considered to be defamatory for among other reasons, the 1st Respondent understood the said words to mean that he was corrupt, was involved in underhand dealings concerning the Appellant, was an impostor to the Appellant and a rogue advocate causing trouble in companies.

43. Gatley on libel and slander defines defamation as follows: -“The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory.”

44. This was the Court of Appeal rendition in S M W v Z W M (supra). In the same decision, the court held that a plaintiff in a defamation case must prove that the words were spoken /written; that those words refer to him/her; that those words are false; that the words are defamatory or libelous and that he/she suffered injury to reputation as a result. The test to determine whether a statement is defamatory is an objective one which depends on what a reasonable person on reading the statement would perceive. Halsbury’s Laws of England 4th Edition Volume 28 states at Page 23 thus: -“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.”

45. Were the words above defamatory? In answering this question, an identification of the operative words in the statement are key. The words are; “lawyer”, “cartel”, “causing trouble”, “company” and “we do not recognize his appointment.” Contextualizing each word, the first connotes the person’s profession. In this case, the party in issue is a lawyer. What sort of lawyer is he? He is a cartel. In ordinary parlance, cartels have been associated with group of persons who come together with a view of manipulating business practices or trends by adopting monopoly and cutting out competition. Equally, it is not lost that it is in public domain that there are some cartels such as drug cartels, for instance, those in Mexico.

46. This individual is a trouble maker and does not cause trouble anywhere but in companies. It is not lost to the court that the 1st Respondent is a certified public secretary and it is the very reason he had been invited to do company secretarial services for the Appellant. Lastly, this trouble maker imposes himself on companies for appointment. Not on merit. To this end, the contents of paragraph 10 of both the initial plaint as well as the amended plaint meets all the fours of the above description. The circumstances under which the words were uttered and the publication made, any person reading the impugned article would conclude without straining to do so that the 1st Respondent was corrupt and formed part of the legal cartels that were causing trouble in companies. I therefore make a finding that the words complained of were defamatory.

47. Having found that the words were spoken or written, the words referred to the 1st Respondent, the words were not true and were defamatory or libelous, the next thing is to determine whether the 1st Respondent suffered injury to his reputation. In order to arrive at a finding of injury, the evidence of PW2 is key. He confirmed that he could no longer refer clients to the 1st Respondent. It was confirmed by the 1st Respondent that he indeed lost clients. I need not belabour this point as loss of clients is enough proof that the 1st Respondent suffered loss and I so find.

48. Was the Appellant liable jointly and severally? It was admitted that the 2nd Respondent was the Appellant’s director. It was equally not controverted that he was its chairman. The Appellant made heavy weather of the separate legal personality of a company from its directors and shareholders. There is no quarrel that a company is in law a separate legal personality from its directors and subscribers. However, a company cannot act on its own but through natural persons such as the 2nd Respondent herein.

49. The Appellant quoted the provisions of the Companies Act, 2015 to try to show that the Appellant did not execute any document authorizing the 2nd Respondent to speak on its behalf. The court respectfully declines this invitation as the cause of action predates the said Act and it is settled that unless an intention is expressed in the statute, statutes are progressive and not retrogressive. I leave it at that.

50. The 2nd Respondent was the director and chairman of the Appellant. His words, conduct and action were representative of the Appellant. In P.K. Langat and Andrew A. Mondoh v Raphael M.A. Juma (supra), the Court of Appeal held as follows: -“…It is trite that directors are in the eyes of the law, agents of the company for which they act, and the general principles of the law of principal and agent regulate in most respects the relationship of the company and its directors. Hence, where directors make a contract in the name of or purporting to bind the company, it is the company - the principal - which is liable on it, not the directors; they are not personally liable unless they undertook personal liability…”

51. This court is thus in agreement with the Trial Court’s findings on liability being joint and several. In Dubai Electronics v Total (K) Ltd & 2 Others HCC NRB Civil 870/98, it was held as follows: -“…Clearly therefore, where you have joint liability all the tortfeasors are and each one of them is liable to settle the full liability. However, in a purely several liability, each tortfeasor is only liable to settle the sum due to the time of his liability. Where, however, the liability is joint and/or several, the plaintiff has the option of either directing his claim against any one of the tortfeasors or making his claim against each one of the tortfeasors according to their individual liability. Either way, he cannot recover more than the total sum decreed. However, the defendants are entitled to reimbursement from the co-defendants in the event that the plaintiff only opts to recover from one of them…”

52. The 1st Respondent is at liberty to elect on which party to claim from.

53. Before concluding on the first issue, it is not in dispute that the Appellant other than filing a statement of defence did not tender any evidence in support of the same. Section 107 of the Evidence Act provides as follows: -i.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.ii.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

54. It was the 1st Respondent’s duty to discharge the burden before the Appellant and the 2nd Respondent could be called to answer. It has been held before that a claim can even be dismissed when it proceeds as a formal proof. In Charterhouse Bank Ltd (Under Statutory Management) v Frank N. Kamau [2016] eKLR, the Court of Appeal had the following to say: -“…We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified…”

55. Therefore, even though the Appellant did not tender any evidence, the onus was on the 1st Respondent to prove his case as required. The 1st Respondent called four (4) witnesses who testified as to the allegations and their evidence was not shaken even on thorough cross examination. I thus have no doubt to hold that the 1st Respondent proved his case on a balance of probabilities. The Appellant having not adduced any evidence to challenge the 1st Respondent’s assertions rendered their defence mere allegations. The holding by Odunga, J (as he then was) in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu (supra) suffices.

56. Turning to the second issue, was the compensatory damages excessive? The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms: -“…It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate…”

57. In John v MGM Ltd [1997] QB 586 cited with approval by the Court of Appeal in C A M v Royal Media Services Limited [2013] eKLR, had the following to say in assessing damages for injury to reputation: -“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.”

58. The Trial Court in awarding Kshs. 4,000,000/= as general damages for defamation and Kshs. 1,000,000/= as aggravated damages noted as follows: -“…I have considered the authorities cited on the principles to follow on awards under this realm. The words directly attacked the Plaintiff professional life as practicing lawyer and a CPS (K). The words attacked his integrity. The words were publicized both in print and electronic media and must have come to the know of millions of Kenyans and spread regionally and globally. The Plaintiff in his testimony painted a picture and rightly so a person who has cut a niche in life as serious practicing lawyer here in Kenya, regionally and globally and based on the above, I will award as follows…”

59. As was held by the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services [1976] & another v Lubia & another (No 2) [1985] eKLR, the Trial Court did not take account an irrelevant factor or left out of account a relevant one or that the amount was inordinately low or inordinately high that it must have been a wholly erroneous estimate of the damage. Based on the foregoing, the court has no reason to disturb the awards made.

60. On the issue of costs, a careful reading of Section 27 indicates that it is trite law that they follow the cause or event as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540. It is, that costs must follow the event unless the court, for some good reasons, orders otherwise. The import is that a successful party is entitled to costs unless he or she is guilty of any misconduct or there exists some other good reasons and or cause for not awarding costs to the successful party. I see no reason to deny the 1st Respondent costs of this appeal as he has succeeded in defending the appeal. I thus award the 1st Respondent costs of the appeal.

61. Flowing from the above, I proceed to make the following disposition: -a.The appeal lacks merit and it is hereby dismissed;b.The amount held in the escrow account be released to the 1st Respondent through his Counsel;c.The 1st Respondent is awarded costs of the appeal.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 17TH DAY OF NOVEMBER, 2023. .................................F. WANGARIJUDGEIn the presence of:Mr. Ogutu Advocate for the AppellantMs. Ondieki Advocate h/b for Mr. Mogaka Advocate for the 1st RespondentN/A for the 2nd RespondentMr. Barille, Court Assistant