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Nation Media Group Ltd v Ngeene (Civil Appeal E375 of 2025) [2026] KEHC 9057 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9057 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E375 of 2025 BW Murunga, J June 25, 2026 Between Nation Media Group Limited Appellant and Eunice Ngeene Respondent (Being an appeal against the entire Judgment of Hon. Moses Wanjala, Principal Magistrate, delivered on 30th October 2024 in Milimani CMCC No. E65 of 2022) Judgment Background 1.This is an appeal arising from the Judgment of Hon. Moses Wanjala, Principal Magistrate, delivered on 30th October 2024 in Milimani CMCC No. E65 of 2022. The dispute came from a story that was published in the daily newspaper that the Respondent claims depicted her as a corrupt person. 2.In the year 2018, from the perspective of the Appellant which set out the background to the claim, it appears that the Appellant’s reporters received information from some sources that certain investigative agencies within Kenya were conducting investigations into a scandal at the National Youth Service (NYS) in which billions of taxpayer funds had been reportedly lost in suspicious circumstances. Those sources pointed to allegations that funds had been moved from NYS through payments made to fictitious companies or to companies which had not rendered the services paid for. 3.Following this information, the said reporters conducted investigations into the scandal to ascertain the veracity of the claims. Part of the investigations involved making telephone calls to people who could verify the information received. As part of the verification exercise, the reporters reached out to the Respondent herein, seeking information on the involvement of Excella Supplies Services Limited (Excella Limited), in the scandal. 4.The reporters subsequently collated their findings and wrote an article titled “Exposed: Who was paid what by NYS” and “Revealed: Who was paid what at NYS in new 9bn scandal” which was published by the Appellant on 18 May 2018. 5.Following the publication of the article, the Respondent instituted the proceedings against the Appellant vide a plaint dated 8 June 2018 alleging that she was defamed and seeking payment of general and exemplary damages for the alleged defamation and issuance of an apology. 6.The matter proceeded for hearing and the Trial Court delivered its judgment on 30 October 2024 holding that the statements in the article complained of were defamatory and awarded the Plaintiff damages amounting to Kenya Shillings Four Million (Kshs. 4,000,000) and exemplary damages of Kenya Shillings One Million (Kshs. 1,000,000). The Appellant’s Submissions 7.The Appellant, through M/s Iseme Kamau & Maema duly filed their written submissions. In the submissions they indicated that the article complained of did not concern the Respondent. The said article was published concerning the embezzlement of funds at NYS which were then paid to certain companies such as Excella Limited; and the Respondent did not establish how the said article lowered her reputation before right thinking members of society for it to be determined to be defamatory. 8.The Appellant submitted that the mere mention of the Respondent’s name in the article does not prove that the statement referred to or concerned the Respondent. 9.Asking the appellate Court take full context of the placement of the Respondents name in the story, the Appellant relied on the case of Miguna Miguna v Standard Group Limited & 4 others [2016] KEHC 6847 (KLR) where the Judge stated:“Courts generally examine the full context of a statement's publication when making this determination. It emerges that the publication to a plaintiff alone is not enough, because defamation is an injury to one’s reputation and reputation is what other people think of a person who alleges he was defamed and not his own opinion of himself.” 10.The Appellant further submitted that the article complained of and specifically the paragraph referred to by the Respondent, did not attack the moral character or profession of the Respondent nor did it lower the Respondent’s reputation in the estimation of right-thinking members of society as claimed in her plaint. The Appellant submits that the Respondent did not produce any evidence to show that her reputation before right thinking members of the society was lowered. 11.Another submission made by the Appellant was that the said paragraph was objective and did not give room for people reading it to make any of the inferences set out in the Plaint or lower the Respondent’s reputation as alleged in the Plaint. They point out that the Respondent’s own witnesses confirmed during the cross examination that a reading of that statement confirmed that it recorded both sides and a reasonable person reading such an article would not construe it to be defamatory. 12.The Appellant submitted that the Respondent did not produce any evidence to show that the article complained of was published maliciously or recklessly and negligently and deliberately with a view to earn any profit at the expense of the Respondent. On the contrary, the Appellant states that as held by the Trial Court, the article complained of was informed by the greater public interest to inform the public on matters of great public importance. 13.Additionally, prior to publishing the article complained of, the Appellant reached out to the Respondent to verify the information received and published the Respondent’s response as part of ensuring objectivity in the article complained of. 14.The Appellant submits that the Trial Court failed to distinguish the cases relied on by the Respondent and thereby awarded an excessive amount of damages. It was their submission that had the Court distinguished the cases, it would have reached the conclusion that the cases relied upon by the Respondent involved individuals of a different repute and position in the society and hence the facts in the said case were distinguishable from the Respondent’s case. In the case of Mboya v Business Today Media (2025) eKLR, the court held as follows: -“In this case, the Appellant, as described in the Plaint dated 14th May 2020, was engaged in moral advocacy and was nominated as a finalist in the Dear Awards USA 2019 under the Best Motivational Speaker category. This court views the Appellant as a person of good repute and influence in society. The Court also takes note of his profession and position in the media which exposed him to the society. However, the authorities relied upon in determining the award of general damages pertained to individuals of higher societal standing than the Appellant 15.The Appellant urges the Honourable Court to find that this appeal has merits and be pleased to exercise its discretion in its favour by allowing the same with costs to the Appellant. The Respondent’s Submissions 16.The Respondent, through M/s Wanjohi & Wawuda Advocates, supports the judgment in its entirety. They go ahead to cite Standard Limited v G.N. Kagia t/a Kagia & Co. Advocates [2010] eKLR, where the Court of Appeal held that an appellate court will not disturb an award of damages "unless it is so inordinately high or low as to represent an entirely erroneous estimate" and that it must be shown that the trial court proceeded on a wrong principle or misapprehended the evidence in some material respect. 17.On jurisdiction, the Respondent submitted that the elements of defamation are settled. As restated in Standard Group Limited v Kimutai Civil Appeal No. 110 of 2014 KEHC 2020, a claimant must establish publication, reference, defamatory meaning, and publication without lawful justification. 18.To this extent, the Respondent submits that in determining whether words are defamatory, the court must consider their natural and ordinary meaning in full context and from the standpoint of the ordinary reasonable reader, taking into account the whole article and the mode of publication, rather than isolated phrases or the claimant's subjective feelings. 19.The Respondent states that she bore the initial burden of establishing publication, reference, and defamatory meaning. Upon doing so, the evidential burden shifted to the Appellant to justify the publication through recognized defences such as truth, fair comment, privilege, or responsible journalism. 20.On breach, the Respondent submits that the defamatory publication attacked her honesty and integrity as a businesswoman. Allegations of dishonesty rank among the most serious forms of defamation because they strike directly at a person's reputation, credibility, and livelihood. 21.She prays that the appeal be dismissed with costs and the judgment affirmed. Issues for Determination 22.Having considered the Memorandum of Appeal, the record and the rival submissions, the issues that fall for determination are:a.Whether the trial court erred in finding that the publication was defamatory;b.Whether there was any misdirection on burden or standard of proof;c.Whether the award on exemplary damages was made in error; Analysis and Determination 23.The duty of the first appellate court is important to appreciate as it sets the boundaries and depth that the court will go into when considering the appeal such as this one. To that extent, and this being a first appeal, I am enjoined to consider the evidence that was tendered before the trial court, to evaluate it afresh and to draw my own conclusions. The principle is firmly settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 in which the Court stated“An appeal to this court from a trial by the High Court is by way of a 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 it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound to follow the trial judge’s findings of fact if it appears that either he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed Saif –Vs- Ali Mohamed Sholani (1955) 22 EACA 270)” 24.With that duty being borne in mind, I will now turn to the issues starting with the one about whether the article complained off was defamatory. 25.The sentence in the article that is on the weighing scale on its defamatory value has been restated at paragraph 8 above to be comprising the words:“Ms Eunice Ngeene of Excella Limited, which is shown to have been paid Sh282 million, also denied doing business with the NYS before dismissing our enquiry ‘Our business has never worked there. And even if it has, so what? What is the problem? Are you CID?’ she poses.’’There is reference to both the Respondent together with the company that the article alleges is associated with her. 26.It is useful to consider the five elements of defamation and whether they apply in respect of the statement above. The words must be capable of injuring a persons character; the words must refer to the person; there must be publication; the statement must be false and the statement must have caused harm to the person’s reputation. It is clear that there was publication so that should be one of the elements that one can get out of the way. The publication happened in the Daily Nation edition of 18th May 2018. 27.It bears emphasis that these elements are cumulative and not disjunctive. Defamation is a serious imputation and the threshold for establishing it is correspondingly high. A claimant must prove each and every element, and the absence of any one of them is fatal to the claim, however firmly the others may have been established. 28.The Court of Appeal restated the essential requirements in Wycliffe A. Swanya v Toyota East Africa Ltd & another [2009] eKLR, holding that in a suit founded on defamation the plaintiff must prove that the matter complained of is defamatory in character, that it was published, and that it referred to the plaintiff. The burden of proving these elements rests squarely on the claimant and does not shift to the defendant until that burden has first been discharged. It is against this exacting standard, and not a relaxed one, that the Respondent’s case must be measured. The court stated that:“For the purpose of deciding a case of defamation, the Court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. It is common ground that in a suit founded on defamation the plaintiff must prove:-(i)That the matter of which the plaintiff complains is defamatory in character.(ii)That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.(iii)That it was published maliciously(iv)In slander, subject to certain exceptions, that the plaintiff has suffered special damage.” 29.On the question as to whether the article published referred to and was concerning the Respondent, there was an argument that was raised during the trial that the words as used were more referring to the Company than to the Respondent. 30.When defamation is considered, one must be careful and analyse the statement that is alleged to be defamatory and the statement made in this case had a measure of ambiguity. The statement Ms Eunice Ngeene of Excella Limited, which is shown to have been paid Sh282 million in its natural meaning has two inferences. There is the inference that Eunice Ngeene is part of Excella Limited and the second inference that Excella Limited were reportedly paid the Kshs 282 million. 31.The statement would be different if it read Ms Eunice Ngeene of Excella Limited, who is shown to have been paid Sh282 million as that would then infer that it was the Respondent who was paid the sum of Kshs. 282 million. 32.Read to its conclusion, the reference to the Respondent is that she is quoted as having replied to an enquiry.“Ms Eunice Ngeene of Excella Limited [the linkage that was reported between the Respondent and the company], which [the company] is shown [by the reports being quoted] to have been paid Sh282 million, also denied doing business with the NYS before dismissing our enquiry ‘Our business [the company she runs?] has never worked there. And even if it [the company] has, so what? What is the problem? Are you CID?’ she poses. [the dismissal of any wrongdoing]’’ 33.I associate myself fully with the submission by the Respondent that in determining whether words are defamatory, the court must consider their natural and ordinary meaning in full context and from the standpoint of the ordinary reasonable reader, taking into account the whole article and the mode of publication, rather than isolated phrases or the claimant's subjective feelings. Without being pedantic, the difference between a natural person and a legal person is that the legal person may be referred to as ‘it’ and ‘which’ which are not the same references to a natural person who in this case would have ‘her’ and ‘who’. 34.This distinction is not a mere grammatical nicety; it is anchored in a settled principle of law. A company and the persons who run it are, in the eyes of the law, separate and distinct legal persons, each with its own identity and each capable of suing and being sued in its own name. That principle, traceable to Salomon v Salomon & Co. Ltd [1897] AC 22 and applied to the law of defamation by the Court of Appeal in Wycliffe A. Swanya v Toyota East Africa Ltd & another [2009] eKLR, means that an imputation directed at a company is not, without more, an imputation against its officer. 35.The sum of Kshs. 282 million is reported to have been paid to Excella Limited, the company, and not to the Respondent in her personal capacity. The funds, the payment and the alleged dealings with the NYS all attach, both grammatically and in substance, to the company and not to the woman who answered the telephone. 36.For the Respondent to succeed, she had to show that the words, read reasonably and in full, lowered her own reputation; it was never enough to show merely that a company with which her name was associated had been mentioned in an unflattering light. 37.This salient feature is necessary for context and the reading of the statement in full would not merely stop at the mention of the Respondents name but the entire paragraph. 38.The trial Magistrate at paragraph 45 of the Judgment which appears at page 208 of the Record of Appeal considered the possibility that there could have been another Eunice Ngeene or even a company known as Excella Supplies Services Limited but then correctly ruled this out as the Appellant had themselves confirmed that they contacted the Respondent. This was not a case where the reference to the person is in dispute. As was stated in in Knupffer v London Express Newspaper Limited [1944] 1 All ER 495:“The only relevant rule is that in order to be actionable, the defamatory words must be understood to be published of and concerning the plaintiff". 39.What was in dispute though was the context in which the name of the Respondent was used in the story that was published. 40.I have perused the Record of Appeal in particular pages 18 and 19 which are excerpts from the newspaper report so as to get the full context of what the story published by the Daily Nation was in reference to. I have taken the liberty to summarize my findings from these two pages as follows:a.The lead cover story in the newspaper contained the headline: Exposed: Who was paid what by NYS.b.The story was continued on page 4 and 5 of the newspaper and focused more on the companies. The byline that appears at the page 19 and 53 of the Record of Appeal shows the words: List of 36 Companies confirms the adage that some animals are more equal than others (a wry saying from George Orwell’s Animal Farm)c.The first paragraph of the story has the words:Some of the companies that are under investigation over the possible loss of Sh9 billion at the National Youth Service (NYS) have had previous controversial dealings with the outfit -- and have no Internet footprint.While they deal in hundreds of millions of shillings, only one of the companies under investigation has a website but, still, it does not list its management.d.The boxed story on the said page has the names of the 36 companies with Excella Supplies Services Company Limited listed in the table as the fourth highest having received Kshs. 282,125,250e.In the main story, several companies are quoted and of particular interest is Mombasa based Techbiz Limited which is quoted in the preceding two paragraphs before the one that mentions the Respondent where it is indicated that a woman who identified herself as Swabrina denied that they had been transacting with NYS.f.It is this context that when the newspaper references the Respondent they use the word ‘also denied doing business with NYS’. 41.From this summary above, it is clear that the focus by the newspaper was on various companies and that the said companies were contacted and asked to make comments about the report. 42.The Respondent in her Witness Statement alluded to having been contacted by a Tim Wanyonyi from the Appellant company. His enquiry to her was about the Company. She gave an answer which was reported verbatim. The bottom line is therefore that from this whole context, it was Excella Limited that was being referenced and though the Respondents name was mentioned, it was mentioned in that context. 43.There is a further dimension that weighs heavily in the Appellant’s favour. The hallmark of responsible journalism is that the subject of a report is afforded a fair opportunity to respond before publication. The Respondent was accorded precisely that opportunity. She was contacted before the article ran and invited to give her side of the story. 44.Rather than offer a substantive account, she elected to dismiss the enquiry, and the Appellant, far from suppressing her position, published her response word for word alongside the allegation. 45.A media house that affords the right of reply and then faithfully records both the inquiry and the answer it receives cannot readily be accused of acting maliciously, recklessly or with an intention to injure. Having been given the platform to controvert the information the Appellant held, and having chosen to meet it with a rhetorical question rather than a denial of substance, the Respondent can hardly turn around and complain that the publication was one-sided or that her side was not heard. 46.I have also noted that the investigative journalist who contacted the Respondent was asked where he got the name. He indicated that he got the name from the Department of Criminal Investigations that had the names of the other companies that were being investigated. 47.Considering that this was an investigative body, there is a plethora of cases on qualified privilege. The decisions in Jeff Otieno & 2 Others Group v Martin Ng’ang’a[2019]eKLR, Ezekiel Oduk v Nation Media Group Limited [2021] eKLR, Charles Katiambo Musugu v Dorine Lusweti [2021] eKLR, Francis Chereno Ngeny & 11 Others v Sammy Kiprono [2017]eKLR are some that hold that there cannot be the basis of a claim founded on defamation if the report was lawful, privileged and made pursuant to public duty and interest. That the report was made pursuant to a legal duty imposed by law, was done in good faith within the scope that is a statutory obligation meanwhile was not malicious, reckless or actuated by malice. 48.In qualified privilege, the case of David Chege Mwangi v Mugambo wa Gachoco Co. Limited [2010] eKLR, is germane as it cites the case of University of Nairobi v Mbuthia where the Court of Appeal held:“A publication becomes qualified privilege in occasions where the person who makes a communication has an interest or a duty, legal, social or moral to the person to whom it is made has a corresponding interest and duty to receive it – here reciprocity is essential." 49.The Court takes judicial notice that the NYS scandal was a matter of great public interest. Indeed, corruption as a scourge in our Republic is a matter of great notoriety and it would be remiss if members of the Fourth Estate were to have such trepidation when making commentaries on the same with the fear that defamation suits will be awash. The case in point in which 36 companies were under investigation would easily lead to an avalanche of cases that would not be doing any good to the Republic. 50.The role of the media in a constitutional democracy reinforces this conclusion. The freedom of expression guaranteed by Article 33 of the Constitution, and the freedom and independence of the media protected by Article 34, are not ornamental. They exist precisely so that the press may seek, receive and impart information on matters of public concern and may hold the powerful to account. 51.The reporting of how billions of shillings of public funds came to be applied at the NYS lay at the very heart of that mandate. The Court of Appeal recognised the balance to be struck in Musikari Kombo v Royal Media Services Limited [2018] eKLR, where it described the defence of qualified privilege as an attempt to reconcile two vital but competing interests: the individual’s right to have their character and reputation protected from false, unwarranted and malicious attack on the one hand, and the public’s right to know, as exercised and fed by freedom of expression, which the Court called an indispensable feature of a free and democratic society and a major tool for public accountability, on the other. 52.The same balance is reflected in Section 7 of the Defamation Act. Where, as here, a report on a matter of grave public interest is fair, accurate and made without malice, the law leans towards protecting the publication rather than punishing it. Article 33(3) reminds the media that the exercise of this freedom must respect the rights and reputation of others, and it is to that caution that I now turn. 53.This is not a carte blanche to associate anyone with corruption or to scream at the headlines that everyone is a suspect of a questionable transaction with a government body unless they prove themselves innocent. To do so would lead to newspaper and the media at large losing their credibility as the voice of reason. 54.It wasn’t long ago that the newspapers were being called meat-wrappers by no less a person than the Head of State. It was a tacit indictment of the Fourth Estate by the Fourth President. This is a rather old role of newspapers as the butcheries no longer wrap meat in old newspapers for health reasons but also because it is an offenceso to do in some counties. The traditional role of newspapers as with other media remains to inform, to educate, to entertain but even more importantly to shape public discourse and to act as a watchdog. These roles can only be played without putting huge barriers and expecting the media to be one hundred percent accurate in their reporting. 55.A look at the evidence that was led in the trial Court on the defamation case also projects witnesses that bought the newspapers because they had heard about what was contained in that particular edition. 56.Duncan Ngeene in his Witness Statement noted that after he received several calls, he bought the newspaper. Jeremiah Chege also noted the same that he had read the online version and then bought the ‘actual’ newspaper by which he meant the print version. Jane Wambui also bought the newspaper after a friend called as did Stephen Chema Mwangi. It is interesting that there was a scramble to confirm if the news had been published but even more interesting that the interpretation by all the witnesses was that the Respondent was portrayed as being a corrupt person. 57.I am not convinced at all that the Respondent made out a case that the publication disparaged and discredited her reputation and exposed her to hatred, ridicule, scandal, odium of contempt. The circle of witnesses called was too narrow and allied to get to the levels of proving reputational damages. One of the witnesses stated they had known the Respondent for more than ten years but wished the Court to believe that the mention of half a sentence that mentioned the Respondent was enough for her to be discredited a reputable person. As noted above, reading the whole sentence would have actually noted the vehement denial by the Respondent that she had carried out business with the NYS. 58.The law requires more than the wounded feelings of a claimant or the sympathies of those close to her. Reputation is what others think of a person, and damage to it must be proved by independent evidence of how the publication was received by ordinary, disinterested members of society. 59.The Court of Appeal made this plain in Selina Patani & another v Dhiranji V. Patani [2019] eKLR, holding that a person’s own view of his or her reputation is not material, and that there must be evidence from a third party to the effect that the standing and reputation of the claimant was lowered as a result of the defamatory publication. The Court of Appeal bench states that:“It is in this context that we agree with the learned Judge that a person’s own view about his/her reputation is not material in a claim for defamation; there must be evidence from a third party to the effect that the standing and reputation of the claimant has been lowered as a result of the defamatory publication. In the absence of third party evidence, we find no error of law on the part of the Judge in arriving at the determination that the appellants did not prove their claim for defamation.” 60.The witnesses called by the Respondent were drawn from a narrow and allied circle, and their evidence fell short of establishing that her reputation, in the estimation of right-thinking members of society, was in fact diminished. On this element too, which goes to the very heart of the tort, the Respondent’s case was found wanting. 61.It didn’t help though that the Respondent had also thrown back the words to the reporters by stating that with the presumptive without prejudice to her denial of the fact that the Company had some business with NYS, even if the company had done so what was the problem? By asking so what and whether the reporter was part of the CID (or DCI as the case may be) she had been given the platform for denial which she took and which was reported. 62.When approaching defamation cases, it is important that courts of law are also careful on the relations of the witnesses to the claimant as there is a likelihood of bias in respect to how the interpret the stories. I would not go as far as to state that such witnesses place a ‘trap order’ and may mislead the court but they are not totally independent and may not qualify as the ordinary man that is found on the Kawangware Bus. 63.It is also important to note the evidence that was produced to show the diminished business returns by the Respondent after the publication were also not clearly demarcated from what are the ordinary ebbs and flows of business that may have different returns in different seasons. I have struggled to make the nexus between the article that was published and the business of another company that was not even mentioned in the article. 64.To my mind, the burden of proof has not been discharged sufficiently to evince the loss of reputation as was averred. 65.A first appellate court does not interfere merely because it might have expressed itself differently; it interferes only where the trial court is shown to have erred in principle, misapprehended the evidence, or arrived at a conclusion no reasonable tribunal could reach. It is my holding that such error has been sufficiently demonstrated. 66.Having re-evaluated the record for myself, I arrive independently at a different conclusion from the trial court. 67.Having found that the publication was not, when read fairly and in its full context, defamatory of the Respondent, and that the essential elements of the tort were not established, the second and third issues largely fall away. 68.The question of the burden and standard of proof has been answered in the course of the foregoing analysis: the Respondent bore the burden of proving each element of defamation and did not discharge it, and the evidential burden therefore never shifted to the Appellant. 69.As for the award of exemplary damages, it cannot stand once the foundation of liability has been removed. Exemplary damages are parasitic on a finding of actionable wrongdoing, and where no defamation has been proved there is nothing upon which such an award can rest. It follows that the award of Kshs. 1,000,000 in exemplary damages, like the award of general damages, must be set aside. Disposition and Orders 70.The upshot is that appeal succeeds. I consequently make the following orders:a.The appeal is allowed.b.The Judgment and decree of the trial court delivered on 30th October 2024 in Milimani CMCC No. E65 of 2022 is set aside.c.Whilst costs ordinarily follow the event, discretion is exercised and each party shall bear the costs of the Appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGEIn the presence of:Ms. Asman instructed by Iseme Kamau Maema for the AppellantWanjohi instructed by Wanjohi Wawuda for the RespondentKevin Babu - Court Assistant