https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7214

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **CIVIL APPEAL NO E014 OF 2024** **SAFARICOM PLC…………………..………………………….APPELLANT** **-VERSUS-** **GLADYS WANJIRU WAIHIGA………………….…….1ST RESPONDENT** **INVENTURE MOBILE LIMITED……………………2ND RESPONDENT** **JUDGMENT** 1. This appeal arises out of a decision of the Chief Magistrate’s court presided by Hon Vincent Kiplagat SRM, in ***Nyahururu Civil suit No. 107 of 2020*** which was instituted by plaint dated 23.7.2020 wherein the 1st Respondent sought an award of general and exemplary damages for professional negligence and aggravated damages for defamation. 2. Through a statement of defence dated 28th January 2021 the Appellant denied liability and in particular denied applicability of the doctrine of vicarious liability and averred that it would rely on the doctrine of *volenti non -fit injuria* in so far as it was applicable in the matter. In the alternative it was averred that if the incident occurred as alleged, though denied, it was wholly caused and/or contributed to by the 1st Respondent’s negligence. 3. At the outset the 2nd Respondent denied the occurrence and particulars of negligence alleged. It was averred that the occurrence was caused solely and substantially contributed to by the negligence of 1st Respondent. 4. On the 15.10.2021 the 1st Respondent entered into a consent with the 2nd Respondent whereby the matter was fully and conclusively settled between them upon agreed terms of the settlement agreement. An all-inclusive sum of Kshs 1,000,000/= was paid and the 2nd Respondent was discharged from the suit while the suit between the Appellant and the 1st Respondent proceeded to trial. 5. The facts were that the 2nd Respondent registered one Scorvia Cherotich cellphone number 0710401600 using the 1st Respondent’s National Identity Card No. 28586797 without her consent and the stated Scorvia Cherotich was advanced a soft loan by the 2nd Respondent using mobile phone No. 0710401600 which she defaulted in payment. In the result she was listed as a defaulter by the Credit Reference Bureau (CRB) for not paying Ksh.9,936/-. 6. The Appellant was faulted for allowing registration of a stranger, Cherotich Scorvia for cell phone +254710401600 using the national identity card number of the 1st Respondent without the consent of the 1st Respondent. The Appellant and the 2nd Respondent were therefore faulted for negligence and maliciously causing the publishing and blacklisting of the 1st Respondent’s national identity card number while knowing fully that the alleged default didn’t concern the 1st Respondent, a publication that was libelous and indeed defamatory which injured and lowered the esteem of the 1st Respondent. And despite having been given a notice to deregister the cellphone No. 0710401600, the Appellant and 2nd Respondent failed, refused and/or neglected to do so hence the suit. That the Appellant acted negligently hence should be held vicariously liable. 7. On its part the Appellant denied the allegations and urged that if the incident occurred as alleged, though denied, the same was caused and/or contributed to by the 1st Respondent’s negligence. That she perpetuated registration of the cellphone number +254710401600 in breach of the clear terms and conditions of operating a mobile line that she permitted a third party to access her information. 8. The trial court considered evidence adduced and found the Appellant to have been negligent. It was condemned to pay the 1st Respondent damages of Ksh. 500,000/= for professional negligence; and Kshs 100,000/= for exemplary damages for professional negligence. 9. Further, the Appellant was ordered to deregister and/or detach from registration under the 1st Respondent’s National Identity Card number 28586791 from the cellphone number 0710401600 registered in the name of Cherotich Scorvia plus costs and interest. 10. Aggrieved, the Appellant proffered this appeal on grounds as that: 11. ***The learned Trial Magistrate erred in law and fact in holding that the 1st Respondent had proved on a balance of probability that she was indeed the holder of National Identity Card Number 28586797 based on the fact that the Appellant failed to prove to the contrary.*** 12. ***The learned Trial Magistrate erred in law and fact in holding the Appellant liable for professional negligence despite the Appellant having acted diligently within its standard norm of practice.*** 13. ***The learned Trial Magistrate erred in law and fact in failing to find that the evidence adduced by the 1st Respondent did not meet the threshold for professional negligence and defamation to warrant any award of damages sought against the Appellant*** 14. ***The learned Trial Magistrate erred in law and fact in awarding the Respondent cash Kshs 500,000/- as general damages and cash Kshs 100,000/- as exemplary damages for professional negligence which awards are unmerited and excessive in the circumstances*** 15. ***The learned Trial Magistrate erred in law and fact in awarding the Respondent cash Kshs 50,000/- as aggravated damages for defamation in total disregard of the disputed fact that the Appellant did publish and/or not caused the plaintiff’s National Identity Card number to be published in the Credit Reference Bureau.*** 16. ***The learned Trial Magistrate erred in law and fact in awarding the 1st Respondent a sum total of cash Kshs 650,000/- despite having entered into a settlement agreement with the 2nd Respondent for a sum total of cash Kshs. 1,000,000/- over the same subject matter, thereby unjustly enriching the 1st Respondent.*** 17. ***The learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s witness testimony and the evidence adduced in court by the Appellant.*** 18. ***The learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s written submissions.*** 19. ***The learned Trial Magistrate erred in law and fact in failing to find that the 1st Respondent had failed to prove her case against the Appellant on a balance of probability to warrant an award of damages.*** 20. This being a first appeal, the court must reconsider and re-evaluate evidence adduced and draw independent conclusions. In ***Selle and Another v Associated Motor Boat Company Ltd & Another [1968] EA* 123** the Court of Appeal stated that; ***“…An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanor of a witness is inconsistent with the evidence generally.*** ***An 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 allowance in this respect.*** ***In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally…”*** 1. The Appellant, a corporate entity was held liable for professional negligence which suggests that it failed to meet the requisite standard of care. There should have been some breach of duty and causation. 2. The Appellant a service provider was faulted for allowing and/or registration of a third-party cellphone number using the 1st Respondent’s Identity Card Number. And upon filing a statement of defence denying the allegations A Third-Party Notice was sought and issued to Scorvia Cheritich which was however not pursued. 3. In ***Eastern produce (k) Limited v John Lumumba Mukosero [2008] eKLR***it was held that ingredients of negligence are that there was a duty care, there was a breach of the duty and that loss was suffered. 4. As currently submitted, the 1st respondent is a holder of National Identity Card number 28586797, evidence adduced established the fact of an individual bearing the name of Scorvia Cherotich having used Identification Card Number 28586797 to register a cellphone number 0710401600. The registration was done by the 2nd Respondent, an agent of the Appellant who admitted liability and settled the claim. 5. The 1st Respondent denied vehemently having consented to the registration dismissing it as illegal. It is stated that upon discovery of the fraudulent act of unlawful registration she reported the matter to the police and obtained an Occurrence Book (OB) Number 32/25/10/2019, but, it was not stated if investigations were conducted. 6. The registration was done by the Appellant’s agent who at the outset denied responsibility but before the matter went to trial admitted liability. It accepted being negligent in the circumstances and compensated the 1st Respondent. Having provided the platform that was used by the 2nd Respondent, their agent, they were linked to each other directly therefore they were liable. 7. The 2nd Respondent in registering the line was required to verify the individual’s details. Presentation of an original Identity Card was mandatory. In the instant case the 2nd Respondent having admitted being negligent it was not taken through trial to establish circumstances under which the registration was done. Therefore, an inference should be drawn that the 2nd Respondent, the agent of the Appellant did not follow the laid down protocols on registration of the Sim Card which was negligence in handling of data. What transpired was negligent and indeed unlawful. 8. The Appellant was required to secure details of the 1st Respondent, a subscriber whose subscription registration details were to be confidential. But a stranger was registered using her Identity Card Number details. There was negligence in the process, generally it was vicariously liable for the acts of its agent. 9. On the question whether the Appellant was liable for defamation, the Appellant relied on the case of ***Miguna Miguna v Standard Group Limited & 4 Others [2017]*****eKLR** as quoted in ***Elisha Ochieng Odhiambo v Booker Ngesa Omole [2021]*****eKLR** on the question of what amounts to defamation where the court stated thus; ***Speaking generally a defamatory statement can either be libel or slander. Words will be considered defamatory because they tend to bring the person named into hatred, contempt or ridicule or the words may tend to lower the person named in estimation of right thinking members of society generally. The standard of opinion is that of right-thinking persons generally. The words must be shown to have been construed or capable of being construed by the audience hearing them as defamatory and not simply abusive. The burden of proving the defamatory nature of the words is upon the plaintiff. He must demonstrate that a reasonable man would not have understood the words otherwise than being defamatory. See Gatley on Libel and Slander (8th edition para, 31).*** ***The ingredients of defamation were summarized in the case of John Ward v Standard Ltd. HCCC 1062 of 2005:-’’*** ***……The ingredients of defamation are:*** ***The statement must be defamatory.*** ***The statement must refer to the plaintiff.*** ***The statement must be published by the defendant.*** ***The statement must be false.*** 1. Upon the Appellant’s agent registering the stranger, Scorvia Cherotich, she used the unauthorized line to take a loan which went unpaid. The argument by the Appellant is that it did not advance the loan to the stranger. Similarly, that it did not take part in publication of the National Identity Card to the Credit Reference Bureau. And, indeed the 2nd Respondent who was responsible compensated the 1st Respondent for the publication. A perusal of the consent reached between the 1st and 2nd Respondent stipulated that; “***This consent does not affect the plaintiff claim against the 1st defendant”*** 1. Further, it was recorded that; ***“the 2nd Defendant shall within 7 days of this consent being adopted have the plaintiff’s indemnity as order of the court Card Number 28586797 removed from Credit Reference Bureau listing”*** 1. Notably, the publication was made by the 2nd Respondent, the agent of the Appellant. Although the wrongful listing with CRB was by the agent, the Appellant cannot be absolved from blame, considering the fact of being *vicariously liable*. The Appellant argues that the 2nd Respondent met all requirements for registration having reasonably believed that the National Identity Card presented by Scorvia Cherotich was a valid document for registration. But the consent entered into between the 1st and 2nd Respondents speak otherwise hence it cannot escape liability. 2. Looking at damages awarded, it was repetitive. In ***Absa Bank PLC & Another v Oshe [2024] KEHC 636(KLR)*** it was stated that; “…***Exemplary damages … are punitive damages and they have an intention to punish defendant and vindicate the strength of the law...”*** 1. In ***Rookes v Bernard & Others [1964] AC 1129***, it was held that in Kenya; ***“punitive or exemplary damages are awardable only under two (2) circumstances namely;*** 1. ***Unconstitutional action by servants of the government and;*** 2. ***Where the defendant’s action was calculated to procure him some benefit; not necessarily financial...”*** 3. As afore found, the agent settled the sum hence the action was not intended to benefit the Appellant therefore it was erroneous for the trial court to grant general damages for professional negligence as well as exemplary damages for professional negligence. 4. In the result, I find the appeal having succeeded partially to the extent that the award of damages in respect the claim against the Appellant in the lower court is set aside and substituted with orders thus; 5. **Professional negligence Kshs 250,000/=.** 6. **Damages for defamation Kshs 100,000/=** 7. **The Appellant to deregister and/or detach from registration, the 1st Respondent’s Identity Card No. 28586797 from Cellphone Number +254710401600 in the name of Scorvia Cherotich.** 8. Costs of the appeal shall be shared equally. It is so ordered. **Dated, signed and delivered Virtually this 13th May, 2026.** **……………………….** **HON L. MUTENDE** **JUDGE**