Nation Media Group Limited & another v Mandevia (Civil Appeal E896 of 2024) [2026] KEHC 7403 (KLR) (Civ) (29 May 2026) (Judgment)

Nation Media Group Limited & another v Mandevia (Civil Appeal E896 of 2024) [2026] KEHC 7403 (KLR) (Civ) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7403 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E896 of 2024 FR Olel, J May 29, 2026 Between Nation Media Group Limited 1st Appellant Brian Wasuna 2nd Appellant and Aniket Mandevia Respondent (Being An Appeal from the Judgment/Decree of the Hon B.M Cheloti (PM) Dated 26th Janauary 2024 In Millimani CMCC Case No 43 of 2023) Judgment A. Introduction 1.The respondent vide his amended plaint dated 20th June 2022 sued the appellants seeking inter alia that the 1st Appellant should remove/expunge a publication concerning him from their website, an injunction restraining the appellants by themselves and employee from further publishing or causing to be published the said or similar words which are defamatory to the respondent, exemplary damages for libel and special damages in respect of the online publication of the articles calculated on the basis of every calendar the said publication is not removed from the appellants website. 2.In response, the Appellants did file their statement of defence denied all the averments made by the respondent and put him to strict proof thereof. In the alternative it was their contention that the words published in their natural and ordinary meaning were published under a sense of public duty and without malice to the respondent and in the honest belief that the information contained therein was true as extracted from Court pleadings concerning a family wrangle over shares in family-owned companies. Finally, the Appellants also pleaded they will rely on the defenses availed under the Defamation Act, Chapter 36 laws of Kenya. B. Facts at Trial 3.PW1 Aniket Mandevia adopted his witness statement and all documents filed in his list of documents were admitted into evidence. In the said witness statement, he stated that he was a practicing advocate of the High court of Kenya, the supreme court of Jamaica and was called to the Bar of England and Wales. On 14.12.2015 he was called by a client who informed him of article published in the Business daily and which also appeared on the 1st appellant’s website which article was well orchestrated to defame, disparage and reduce his character and reputation. He did make inquires with the 1st appellants editors and they confirmed that the said publication had been made relying solely on “court documents” in their possession concerning their family dispute. 4.It was the respondent’s further contention that the article published had misconstrued the pleading filed and falsely implied that;a.He had made death threats and physically assaulted his sister and brother-in-law, and as a result, they had fled the country, which statements were not factual.b.The sister was a practicing Advocate, when that statement was not true.c.The article misconstrues that the alleged unreported assault resulted in the said couple fleeing Kenya, when in fact his sister had stated in her affidavit that the said incident occurred in 2012 nor did she mention in her affidavit that she had fled the county.d.He had falsely transferred ninety (90) shares in the company to himself in February 2015, when the same was not remotely stated or implied in the said court documents.e.The couple had reported the matter to the police in the UK and asked them to liaise with their Kenyan counterparts to prosecute the respondent, when there was no evidence to support that contention nor was the same pleaded in the court documents filed. 5.In short, the appellants had authored the said article based on unsubstantiated criminal allegations, conjecture and a one-sided version of events, made without verification, and the same had implied that he was a criminal wanted by United Kingdom police for prosecution, did not respect lawful process, had no morals, and had engaged in unethical practice as a lawyer. It is on this basis that malice and vindictiveness could be inferred from the article complained of and he had without doubt, suffered reputational damage, emotional distress and thus was entitled to be compensated for the loss suffered. Under cross examination, he confirmed that he had not been struck out from the roll of advocates, since publication of the said article and that its title constituted a statement of fact. 6.DW1 Brian Wasuna also adopted his witness statement, wherein he stated that the article complained of, was published based on pleadings filed in NAIROBI HCCC N0 589 OF 2015 Akshata Mandevia & Imran Lalani Vs Anil Mandevia & Aniket Mandevia and the same constituted fair comments on a matter litigated before court and published without malice in public interest. They had also taken precaution before publishing the said article, by seeking clarification from the respondent’s sister, who was the plaintiff in the said suit and thus their action could not be termed as reckless and/or malicious. He thus prayed that the suit filed be dismissed. 7.The trial Magistrate did consider the evidence adduced and the parties’ submissions and held that the onus was on the appellants to substantiate that the information contained in the published article was true and to corroborate the said information before publishing it. They had failed to do so, and thus the respondent had established his case beyond a balance of probability that his reputation had been lowered before right thinking members of the society leading to loss of job opportunities. The learned trial magistrate proceeded to enter judgment jointly and severally against the appellants as follows;a.The appellants to remove and expunge the said publication from its website forthwith.b.The appellants be restrained, whether by themselves, their agent, and employees from further publishing or cause to be published the said or similar words defamatory to the respondent.c.Global award of damages of Ksh.5,000,000/=.d.Costs of the suit to be borne by the appellants.e.Interest on (c) and (d) at court rates from the date of delivery of judgment until date of payment in full. C. The Appeal 8.Aggrieved and dissatisfied by the aforestated judgment, the appellants filed their memorandum of appeal containing ten (10) grounds of appeal as detailed in the memorandum of appeal dated 2nd August 2024, which grounds can be condensed as hereunder;a.The learned Magistrate erred in law and in fact in holding that the Respondent had been defamed by the Appellants yet the evidence did not support the respondents claim.b.The learned Magistrate erred in law and in fact in holding the publication is defamatory when the respondent had not proved the ingredients of defamation.c.The learned Magistrate erred in law and in fact in failing to take into account the Defenses put forth by the Appellants.d.The learned Magistrate erred in law and in fact in failing to find that the impugned publication was covered by privilege on account of being a reporting of court proceedings. 9.The Appellants therefore prayed that this Appeal be allowed, the entire judgment of the primary suit be set aside and the said suit be dismissed with costs. They also prayed to be awarded the costs of this Appeal. D. Parties Submissions i. The Appellants submissions 10.The Appellants relied on their submissions dated 20th August 2025, where they emphasized that the article published was privileged since its content was based on court pleadings filed in NAIROBI HCCC N0 589 OF 2015 Akshata Mandevia & Imran Lalani Vs Anil Mandevia & Aniket Mandevia and further noted that the said article highlighted the shares dispute in Viking House Best of Kenya Ltd, which company owned Vikings House building situated at Westland’s. In the said pleadings, the plaintiff therein had stated that not only did the respondent threaten them, but he had also assaulted them on different occasions which consequently resulted in them fleeing to a different country. Thus, by dint of Section 6 of the Defamation Act, the defence of absolute privilege did apply and it was thus an error of law to hold that they had defamed the respondent. Reliance was placed in the case of J.P. Macharia T/A Macharia & Co Advocates Vs Mwangi & Another (Civil Appeal No 175 of 2019), (2023) KECA 228(KLR), where the court of appeal did hold that “fair and accurate” report in any newspaper of court proceedings would enjoy absolute privilege. 11.The appellants further analyzed the court pleadings viz a viz the specific complaints made by the respondent and pointed out the specific paragraph’s where the respondent’s actions complained of were specifically pleaded and thus faulted the learned magistrate for holding that the impugned article did not reflect those averments. Further having based their article on the said court pleadings, they had no obligation under the law to verify or prove the claims/allegation and for the trial court to so hold was an error, which ought to be corrected. Reliance was placed in Standard Media Group Ltd & 2 Others Vs AMW & Another (Civil Appeal E028 of 2021), (2023) KEHC 213 58 (KLR) to emphasize on this point. 12.Additionally, the appellants faulted the trial court for holding that the respondent had been defamed, when he had failed to call a third party to confirm that his standing and reputation had been lowered as a result of the defamatory publication. He had thus not proved the tort of defamation and ought not to have been awarded damages. Reliance was placed in the case of Selina Patani & Another Vs Dhiranji Patani (2019) eKLR to affirm the said position. 13.They thus urged this court to set aside the award in its entirety, but if the court were to find otherwise to reduce the damages awarded to Kshs.200,000/=. (ii) The Respondents Submissions. 14.The respondent’s counsel filed and relied on their submissions dated 22nd August 2025 to oppose this Appeal. They reiterated that the article complained of clearly referred to the respondent and had lowered his reputation in the estimation of right thinking members of the society since it portrayed him as a person with high propensity to carry out criminal acts such as murder, fraud, assault and/or intimidation, did not respect the rule of law, was of lose morals and ethical practice and had been subjected to serious investigations in Kenya and United Kingdom for various criminal offences. 15.As a result, the respondent was shunned and avoided by the public in Kenya and United Kingdom thereby causing him to suffer damages and negative publicity to his business and profession. This was ably demonstrated by the rejection letter received from the Economic commission of Africa, Addis Ababa, wrongfully terminated retainer owing to negative online publicity and also lost his job as General legal counsel at Executive Investments Limited. The respondent had thus suffered reputational loss and was entitled to be compensated. 16.Further, the appellants had in the said publication used language that were utterly beyond or disproportionate to the facts and when given an opportunity had failed to demonstrate that the words published were true or that they had taken steps to verify the information published. Without doubt, the article published was not only a reflection of ill will but also recklessness on the part of the appellants and therefore the defence of privilege could not hold. Reliance was placed on the case of Phinehas Nyagah Vs Gitobu Imanyara (2013) eKLR & Nation Media Group Limited Vs Njuru Alias Joseph Muya (Civil Appeal E132 of 2021), (2023) for emphasizes. 17.On whether the respondent’s failure to call an independent witness to verify his character was fatal, they submitted that it was not since the appellants had not challenged the credentials and reputation of the respondent as an advocate of the high court practicing in different jurisdictions. Further there was no doubt that the article published referred to the respondent and was printed and published in a newspaper with wide circulation, thus calling an independent witness was unnecessary. Reliance was placed in Nation Media Group Limited Vs Njiru Alias Joseph Muya(Civil Appeal E132 of 2021), (2023) for emphasizes. 18.Finally, on the award of damages, the respondent urged the court to note that under Section 16A of the Defamation Act, Cap 36 laws of kenya, the trial court was entitled to assess the amount of damages payable as it deems just. The defamatory article had wide circulation, and the appellants had not offered any apology even after establishing the truth of the matter and so no need to make any correction. Considering the facts and circumstances of the case, and other similar awards, it could not be said that the award granted of Kshs5,000,000/= was exaggerated. Reliance was placed on Agnes Zani Vs Standard Group Limted (2019) eKLR, Miguna Miguna Vs Standard Group Limited & 4 Others (2017) eKLR & Micheal Kamau Mubea Vs Nation Media Group Limited & 2 others (2019) eKLR where similar awards were issued. 19.The respondent urged the court to uphold the award of the trial court and to dismiss the appeal filed with costs to them. E. Analysis and Determination 20.I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123 21.A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316 22.In this Appeal, the Appellants are challenging the trial’s court finding that they defamed the respondent and the damages awarded. Defamation is a tort and is 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 tend to make him be shunned or avoided. Gatley on Libel and Slander, 8th Edition at page 15 paragraph 31: “The gist of the tort of Libel and slander is the publication of a 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 people generally.” 23.The defamatory statement is one which has tendency to injure the reputation of the person to whom it refers by lowering him in the estimation of the right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem and typical examples are an attack upon the moral character of the plaintiff attributing to him any form of disgraceful conduct such as crime, dishonesty, cruelty and so on. Publication is the communication of the words to at least one other person other than the person defamed. Publication to the plaintiff alone is not enough because defamation is an injury to one’s reputation, which is what other people think of a man and not his own opinion of himself. An action for defamation is essentially an action to compensate a person for the harm done to his reputation. Therefore, defamation is not about publication of falsehoods against a person; it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower him in the estimation of right-thinking members of society generally. This must be so because an injurious falsehood may not necessarily be an attack on the plaintiff’s reputation. The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. See J P Machira vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997, Nation Media Group Limited v Njuru alias Joseph Muya (Civil Appeal E132 of 2021) [2023] KEHC 26363 (KLR) (4 December 2023) (Judgment) 24.In summary, in an action for libel the plaintiff should prove that the statement complained of (a) refers to him; (b) is in writing, (c) is defamatory, and, (d) was published by the defendant to a third person or persons.On proof of the above facts, the plaintiff makes out his case, and, then it is for the defendant to establish one of the defenses recognized by law. Besides the general defences applicable to all actions in torts, such as, limitation, consent, accord and satisfaction, previous judgment, etc., the three special defences available in an action for defamation, under the common law, are (a) justification (or truth), or (b) privilege, absolute or qualified, and, (c) fair comment. 25.The defence of justification is the plea of truth of the words or statements published by the defendant. The form of the plea is that "the words complained of are true in substance and in fact." Truth is a defence in a civil action, for the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess. No action, therefore, will lie for the publication of a defamatory statement if the defendant pleads and proves that it is true 26.'Privilege' is used here in the sense of an excuse or immunity conferred by law on statements or communications made on certain occasions called 'privileged occasions'. A privileged statement, therefore, is one which is made in such circumstances as to be exempt from the rule that a man attacks the reputation of another at his peril. 27.'Privilege' is of two kinds: (a) absolute and (b) qualified. A statement is said to be absolutely privileged when it is of such a nature that no action will lie for it, however false and defamatory it may be, and even though it is made maliciously, that is to say, from some improper motive. When a statement is not privileged, it is actionable, however honest its publication may have been; but if it is absolutely privileged it is not actionable, however dishonest its publication may have been 28.The publications complained of in this case were in respect of judicial proceedings. Section 6 of the Defamation Act provides as follows:“Newspaper reports of judicial proceedings A fair and accurate report in any newspaper of proceedings heard before any court exercising judicial authority within Kenya shall be absolutely privileged: Provided that nothing in this section shall authorize the publication of any blasphemous, seditious or indecent matter.” 29.Further, section 7 of the act provides for qualified privilege of newspapers as follows:7.Qualified privilege of newspapers1.Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Act shall be privileged unless such publication is proved to be made with malice. 2.In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule to this Act, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish, in the newspaper in which the original publication was made, a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances 30.Part 1 of the schedule to the act lists statements privileged without explanation or contradiction as follows:1………2.… A fair and accurate report of any proceedings before a court exercising jurisdiction throughout any part of the Commonwealth subject to a separate legislature, or of any proceedings before a court-martial held outside Kenya under any written law. 31.In J.P. Machira t/a Machira & Company Advocates v Mwangi & another (Civil Appeal 175 of 2019) [2023] KECA 228 (KLR) the learned judges of the court of appeal held that;“To be privileged, the statements must be "fair and accurate" although it need not be verbatim, and should convey to its readers the substance of what has taken place in court because this is the reason for the privilege. Interpretation of ‘fair and accurate’ in relation to report of court proceedings as provided in section 6 of the Defamation Act requires the court to consider all of the circumstances of the case, including the following non- exhaustive list of circumstancesa.an abridged court report will be privileged provided that it gives a correct and just impressionof the proceedings,b.if the report as a whole is accurate, a slight inaccuracy or omission is not material,c.if a report contains a substantial inaccuracy, it will not be privileged,d.it is not sufficient to report correctly part of the proceedings if, by leaving out other parts, a false impression is created, ande.a report assuming a verdict, before any verdict has been delivered, is not privileged.(See Lincoln v Daniels [1962] 1 QB 237 at 257, & Khasakhala v Aurah (1995-1998) 1 EA 112 ). 32.Turning to this case, there is no dispute that the publication in question was in relation to court proceedings. The question is whether the publications were fair and accurate report of the pleadings filed in court.a.The fact that the respondent’s sister, her husband and employees were continuously threatened due to a family feud concerning a prime building along Nairobi Waiyaki way and that the respondent had on several occasions assaulted his sister and harassed her employees was directly and extensively pleaded in the plaint and witness statement, which events are said to have occurred on several occasions between the year 2012 and 2015.b.That due to fear and psychological trauma the respondent’s sister and her husband felt unsafe in Nairobi and spent Kshs.600,000/= on Air ticket to relocate to Uk is also pleaded. (See paragraph 18)c.The fact that they have reported these threats to the police in Kenya and UK so as to have the respondent prosecuted too is pleaded. (See paragraph 19).d.That the respondent fraudulently transferred his sisters’ shares is also pleaded. (See paragraph 23) 33.Without doubt, the article published was, “fair and accurate” concerning what was pleaded in the HCCC No 589 of 2015 and the defence of absolute privilege applied in all facets in relation thereto. The learned trial Magistrate thus erred to hold that the appellants needed to substantiate the information obtained from the pleadings filed before publishing the same as no such requirement is needed in law. E. Disposition 34.Flowing from the above, I do find that this Appeal has merit. The judgment dated 26th July 2024 issued in Milimani Commerical Court CMCC No E43 of 2023 by Hon B.M. Cheloti (PM) is hereby set aside in its entirety and the said suit is dismissed with costs to the Appellants. 35.The Appellants are also awarded the cost of this Appeal plus interest therein at court rated until payment in full. 36.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT KIAMBU THIS ..........29TH ..............DAY OF MAY, 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Team this …29th……day of MAY, 2026.In the presence of: -………………………N/A………………………………..Appellant…………………………N/A…………………………. Respondent…………………………SANJA……………………. Court Assistant