Issack v Issack (Civil Appeal E011 of 2025) [2026] KEHC 11199 (KLR) (15 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **APPALLATE DIVISION** **CIVIL APPEAL NO. E011 OF 2025** **SURAW MOHAMMED ISSACK……………………………………..APPELLANT** **VERSUS** **ABDIWAHAB NURA ISSACK……………………………………..RESPONDENT** **(BEING AN APPEAL FROM THE JUDGMENT/DECREE OF HON W.K CHERUIYOT PRINCIPAL MAGISTRATE DELIVERED ON 15th OCTOBER 2025 IN MOYALE PMCC CASE NO. E007 OF 2024)** **BETWEEN** **ABDIWAHAB NURA ISSACK…………………………………….…. PLAINTIFF** **VERSUS** **SURAW MOHAMED ISSACK………………………………………DEFENDANT** **JUDGEMENT** 1. **INTRODUCTION** 2. This appeal is filed challenging the Judgement/decree of ***Honourable W.K Cheruiyot (PM)*** dated 15th October 2025, issued in **Moyale PMCC No E007 of 2024**, where he entered judgement in favour of the respondent to the tune of **Kshs.2,000,000/=** as general damages for injury to his reputation and further issued orders of Mandatory injunction restraining the appellant from further disseminating or causing to be disseminated any defamatory material of or concerning the respondent, who was also awarded the costs of the suit. 3. The background hereto was that vide his plaint dated 13th September 2024, the respondent sued the Appellant seeking inter alia an order of permanent injunction restraining the appellant from further disseminating or causing to be disseminated any defamatory material of or concerning him or at all, general damages, interest thereon, costs of the suit and any other relief the court deems fit to grant. 4. The respondent averred that he was a registered nurse and Senior Nursing Officer stationed at Takaba Referral Hospital in Mandera County. On or about 11th August 2024, while participating in a WhatsApp forum known as ***BK SUPERSTAR*** comprising approximately 221 members, he posted a video message on the subject of maturity. In response thereto, the Appellant immediately responded to his post by texting, without provocation or just cause, malicious and defamatory statements or words: ***“Khalbi Curur (shallow minded), fake nurse with fake degree, your capacity of understanding is very low. Umejifungulia mlango usilie na konde and will reply you very soon and be mos mos.”*** It was further pleaded that the Appellant forwarded the same words in another social forum styled ***Fulamo Family Forum***, thereby aggravating the injury caused to the Respondent’s reputation. 5. The two WhatsApp forums composed of persons, who were mainly from Tabaka sub county within Mandera county, where he lived and worked, and following the said posting, people within the aforementioned group, others not in the said WhatsApp group called him and others inquired verbally with the intention to verify the said allegations, and whether indeed if it was true that he had a fake degree. The appellant’s post and conduct were clearly unwarranted and it could be safely presumed that he intended to malign and cause him public embarrassment, loss of reputation, mental anguish, loss of self-confidence and without doubt harmed his reputation and character. 6. Despite demand and notice of intention to sue, the appellant had failed to retract his statement and/or refused to issue an apology and the respondent, thus prayed that the orders sought be granted. 7. **THE RESPONSE** 8. The appellant, upon being served, did file his Statement of Defence dated 11th February 2025, where he denied in toto all the averments made by the respondent in his plaint and put him to strict proof thereof. Further, he particularly, denied publishing any statement concerning the respondent on any public forum and in the alternative stated that if any such publication was made, (which was still denied), then the same did not target the respondent nor maligned him in any manner. The particulars of damages as itemized in the plaint too was vehemently denied and the respondent was put to strict proof thereof. 9. **FACTS AT TRIAL** 10. PW1, Abdiwahab Nura Issack, the Respondent herein, adopted his witness statement, and the list of documents relied too, was produced as exhibits. He rehashed the matters pleaded and maintained that the words published were calculated to disparage his professional standing as a registered nurse and caused him to suffer embarrassment, loss of clients at his clinic, and psychological distress. 11. On cross‑examination, the respondent maintained that he was a respected member of the community, a family man, and proprietor of Mutaz Medical Clinic. Previously in 2017 and 2019, the appellant had defamed him, but they had resolved the matter before community elders and the appellant had apologized and vowed not to repeat the same. He reiterated that the defamatory words had led him to suffer loss of clients, inability to pay staff, and social stigma, though he conceded that he had not filed financial statements to prove financial loss. He further maintained that the defamatory publication, were widely circulated in different forums and understood by friends, colleagues and clients to refer to him personally and thus had suffered loss and damage for which he should be compensated. 12. In re-examination, the respondent affirmed his evidence in chief and emphasized that he was a respected member of the community and was commonly referred to as Daktari, and that it was clear that the appellant’s comments were directed towards him, since he was the only nurse in the WhatsApp group in question. Members of the said groups had also urged the appellant to apologize, and he too had served the appellant with a demand letter, but the appellant had refused to withdraw his remarks and/or to apologize. He thus urged the court to award him damages for the reputational injury suffered. 13. PW2, Abdulrahim Abdow Mohamed, a nurse at Takaba Sub‑County Hospital, adopted his witness statement as evidence in chief. He testified that he had known the Respondent for many years, had worked with him on part‑time basis at Mutaz Medical Clinic, and attested to his good reputation prior to the incident. He stated that following the publication, the Respondent’s reputation was injured, clients attended to at the clinic had reduced, and that the Respondent suffered distress. On cross‑examination, PW2 admitted that he was not a member of the WhatsApp groups in question and had only been shown the posts by the respondent and other common friends. He maintained that the Respondent was a registered nurse of good standing and that the publication had caused him to suffer loss of reputation and clients since his qualification was put in doubt. He was also not aware of any other factors that lead to loss of clients to his clinic facility. 14. The Appellant, DW1 Nur Mohamed Issack, adopted his witness statement and testified that he was a police officer residing in Banisa Sub‑County, Mandera County, but was stationed in Meru County. He confirmed that the respondent was his cousin, but did not know of his trade and/or profession since they last met over 40 years ago. On cross examination, he admitted being a member of the ***BK Superstar*** and ***Fulamo*** forum, which was their clan WhatsApp group, his phone number was 0725113277, but added that he had been removed temporarily from the said forums. In relation to the impugned post, he confirmed that he responded to the shared clip titled, “Maturity”, but denied that the impugned words (his response) were directed at the Respondent. 15. He emphasized that the group had several nurses and explained the phrase “***Galbi arur***” was a Somali expression meaning “***immature child***” and reiterated that the words, “fake nurse” too was not directed at the respondent, since he did not know the person who had sent the said clip, and/or his profession. He further clarified that he did not know where the respondent worked and had never had any issue with him before, not even before the clan elders as alleged. Finally, he confirmed that upon being served with the demand letter, he had shared the same on the WhatsApp group to inquire on who was suing him. 16. Under re‑examination, the appellant admitted that he was the one who posted the “impugned publication”, in response to the clip talking about maturity and how people behave, since the same was an indirect abuse. He reiterated that he had no quarrel with the Respondent, and maintained that they had not disagreed before. D. **TRIAL COURT JUDGEMENT** 1. The learned trial magistrate, having considered the pleadings, oral testimony, documentary evidence, and submissions of counsels, addressed the central issue of whether the words complained of were defamatory. The court noted that the Appellant admitted posting the impugned words in the WhatsApp forum where both parties were members, though he claimed they were general and not directed at the Respondent. The magistrate held that the words ***“fake nurse with a fake degree”*** in their ordinary meaning suggested that the Respondent was unqualified, falsely held himself out as a nurse, and had acquired his credentials in a questionable manner. Such words, unless justified, were capable of lowering the Respondent in the estimation of right‑thinking members of society, exposing him to ridicule, contempt, and being shunned by the public. 2. On the question of reference, the trial court held that the Appellant had tagged the Respondent’s post and responded directly to it, thereby making it clear that the words were of and concerning the Respondent. The learned magistrate rejected the Appellant’s contention that the words were general, noting that he was unable to name any other nurses in the WhatsApp group. The court further observed that other members of the forum had urged the Appellant to withdraw the offending statement, confirming that the words were understood to refer to the Respondent. 3. On publication, the Appellant had admitted to making the offending post, and the court had found that the words were indeed published in both the ***BK Superstar*** and ***Fulamo Family Forum* *groups***. On falsity, the court held that the Respondent had testified to being a registered nurse employed by the government and had produced his registration details, while the Appellant tendered no evidence to support his allegation that the Respondent was a “fake nurse with a fake degree.” The defence was therefore dismissed as unsound. 4. On quantum, the court considered the Respondent’s testimony that he suffered professional damage, loss of clients, and financial harm. Guided by precedents including ***Nation Media Group Ltd v Nanjira* [2024] KEHC 2576, *Tipper v Rosborg* [2024] KEHC 14010, and *Ambe v Onyango* [2024] KEHC 6138**, the magistrate held that a successful plaintiff in a defamation action is entitled to general compensatory damages to vindicate his reputation and compensate for distress, hurt, and humiliation. The court awarded the Respondent general damages of **Kshs.2,000,000/=** for injury to his reputation, issued a permanent injunction restraining the Appellant from further disseminating defamatory material concerning the Respondent, and awarded costs of the suit. **E. THE APPEAL** 1. Being aggrieved by the said judgement/ decree, the appellant filed his memorandum of appeal and raised the following grounds of appeal namely that; 2. ***The learned trial magistrate erred in fact and in law by finding that there was publication of the alleged defamatory statement to third parties when there was no proof of publication beyond the Respondent himself.*** 3. ***The learned trial magistrate erred in fact and in law by finding that the alleged defamatory statement was false when no documentary or other evidence was produced by the Respondent to that effect.*** 4. ***The learned trial magistrate erred in fact and in law by finding that the alleged defamatory statement referred to the Respondent.*** 5. ***The learned trial magistrate erred in law and in fact by misapplying the law on defamation generally and in awarding the reliefs granted in the impugned judgment.*** 6. The Appellant therefore prayed that this Honourable Court be pleased to set aside the impugned judgment and to dismiss the primary suit with costs **F. PARTIES SUBMISSIONS** 1. **Appellant’s Submissions** 2. The Appellant, relied on his submission dated 3rd March 2026, where he urged this court to find that the learned trial magistrate had erred in both law and fact to hold that he was liable for defaming the respondent, when it was not demonstrated that he was the only nurse in the said forum, nor was there any proof that the words published were understood to exclusively refer to the Respondent. In short, identification was inferred rather than proved, contrary to the principle that defamation, required clear evidence that the words complained off were understood to refer to the claimant. Reliance was placed on ***Matumbi Vs Tanui (Civil Appeal No 67 of 2020), (2026) KECA 253 (klr) & MWY v ZWN [2015] eKLR,*** where the High Court held that identifiability must be established by evidence. 3. On falsity, the Appellant submitted that the Respondent had failed to discharge the burden of proof. It was argued that the trial court erroneously presumed falsity once it found the words were defamatory, thereby reversing the burden of proof. Counsel emphasized that documentary proof of professional qualifications was essential, yet the Respondent relied solely on oral testimony without producing certificates or registration documents from the Nursing Council. Reference was made to case of ***Matumbi (Supra)*** which reaffirmed that falsity is a substantive element of defamation and must be strictly proved. 4. On whether the respondent’s reputation had been lowered before right thinking members of the society, the appellant emphasized that the publication and its defamatory effects must be proved as facts and further noted that defamation protected reputation and not feelings, annoyance or professional rivalry. While the respondent had alleged that the publication had resulted in less clients coming to his clinic, he had admitted in cross examination that he had not produced financial statements, attendance records or tax returns to prove the same. In absence of objective evidence of reputational damage, the finding that his standing had been lowered before his peers could not be sustained. 5. On whether malice was proved, the appellant averred that malice could not be presumed from publication alone and had to be proved by direct evidence or inferred from conduct demonstrating know edge of falsity or reckless disregard for truth. In the present case, he had explained the context in which the words were posted and denied targeting the respondent. There was also no evidence to demonstrate that the appellant knew the statement made to be false nor had he acted with reckless disregard for truth. Thus the trial Magistrates finding of malice was speculative and unsupported by evidentiary foundation. Reliance was placed in ***Nation Media Group Ltd Vs Alfred .N. Mutua (2017) eKLR*** for emphasis**.** 6. On damages, the Appellant submitted that the award of **Kshs**.**2,000,000/=** was excessive and disproportionate given the limited scope of publication within WhatsApp groups as opposed to national broadcast. Counsel relied on ***Matumbi (Supra)*,** where the Court of Appeal underscored that damages must reflect cogent evidence of reputational injury and proportionality. It was argued that the Respondent had not produced evidence of quantifiable loss, and therefore the award was speculative. The Appellant urged the court to allow the appeal, set aside the judgment, and to dismiss the primary suit with costs, or in the alternative, substantially reduce the damages awarded. 7. **Respondent’s Submissions** 8. The Respondent, on his part, relied on his submissions dated 7th May 2026, wherein he urged this court to uphold the trial court’s findings and to dismissal of this appeal. On publication, it was submitted that the Appellant admitted to posting the impugned words in two WhatsApp forums — ***BK Superstar*** with 221 members and ***Fulamo Family Forum*** with 80 members, thereby reaching nearly 300 persons. This satisfied the legal element of publication, as the words were disseminated to third parties beyond the Respondent. 9. On falsity, the Respondent submitted that he testified to being a registered nurse employed by the government and gave his registration number. PW2 corroborated this fact, which was adequate proof that he was indeed a qualified nurse, thereby shifted the evidentiary burden on the Appellant to prove his allegation that he was a “***fake nurse with a fake degree.***” The trial court was therefore correct in finding that the allegation made was false. 10. On reference, the Respondent submitted that the words were clearly directed at him, as they were posted in response to his video on maturity and tagged to his post. He further noted that the Appellant was unable to name any other nurse in the groups, confirming that the words referred to him and besmirched his reputation before his peers and family. The trial court’s inference was therefore proper. 11. Finally on damages, the Respondent submitted that the award of **Kshs.2,000,000/=** was justified, guided by precedents such as ***Nation Media Group Ltd v Naniira (Civil Appeal E030 of 2021) [2021] KEHC 2576 (KLR) and John v MGN Ltd (1997),*** which affirmed that compensatory damages in defamation must vindicate reputation and account for distress and humiliation. Counsel argued that the defamatory statements had an adverse effect on the Respondent’s clinic, leading to loss of clients and diminished professional standing. It was further submitted that this was not the first time the Appellant had defamed the Respondent, making the award appropriate. 12. The Respondent therefore urged the court to dismiss this appeal with costs, terming it frivolous and vexatious. G. **ANALYSIS AND DETRMINATION** 1. 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.** 2. 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.*** 3. The issues that arise in this Appeal are whether the trial court correctly appreciated the facts and the law to arrive at its decision that the Appellant had published the impugned words to third parties; whether the court erred in finding that the words referred to the Respondent when no independent witness from the WhatsApp forums testified to that effect; whether the trial court misdirected itself by presuming falsity of the words without requiring strict documentary proof of the Respondent’s professional qualifications; whether the court misapplied the principles of defamation in dismissing the Appellant’s defence of freedom of expression and in awarding general damages of **Kshs.2,000,000/=** and finally issuing a permanent injunction in circumstances where the scope of publication was limited. 4. The Appellant admitted to posting the impugned words in the WhatsApp forums where both parties were members. The central question is whether the trial court correctly appreciated the facts and the law in finding that those words amounted to actionable defamation. 5. In ***Matumbi v Tanui (Civil Appeal 67 of 2020) [2026] KECA 253 (KLR) (13 February 2026) (Judgment) Neutral citation: [2026] KECA 253 (KLR)*** the court of appeal succulently summarized defamation jurisprudence as follows; ***In Kenya, the tort of defamation is now well settled, both as a matter of common law and as informed by the Constitution. In an action for defamation, a claimant must establish that the defendant published to a third party a statement of fact which referred to the claimant, was defamatory in nature in that it tended to lower the claimant’s reputation in the estimation of right-thinking members of society, was false, and was published with the requisite degree of fault. Once liability is established, the court must assess damages with due regard to the nature and gravity of the defamation, the reach and mode of publication, the conduct of the defendant before and after publication, and the need to vindicate reputation while, at the same time, respecting the constitutional guarantee of freedom of expression under Article 33 of the Constitution*** ***Flowing from this formulation, a plaintiff in a defamation action must establish the following five elements.*** 1. ***First, defamatory meaning. A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society generally, causes the claimant to be shunned or avoided, or exposes the claimant to hatred, contempt, or ridicule. This formulation, drawn from Gatley on Libel and Slander, has been repeatedly cited with approval by various courts. For example, in Musikari Kombo v Royal Media Services Ltd [2018] eKLR, this reaffirmed that the test is an objective one, to be applied from the standpoint of ordinary, reasonable members of society, and not from the subjective sensitivities of the claimant. Kenyan courts have further emphasized that the impugned words must be assessed as a whole, in their full context, and according to their natural and ordinary meaning as understood by reasonable readers or listeners, rather than through strained or technical interpretation. See also Miguna Miguna v Standard Group Ltd & 4 Others [2017] eKLR (HC).*** 2. ***Secondly, reference to the plaintiff. The claimant need not be expressly named in the publication. It suffices if reasonable persons acquainted with the claimant would understand the words complained of to refer to him or her. The governing consideration is identifiability, not universality of recognition. In SMW v ZWM [2015] eKLR, the High Court held that defamation is established where those who know the plaintiff can, on a reasonable reading of the publication, identify him or her as the person referred to. What matters is that the publication points, directly or by implication, to the claimant.*** 3. ***Thirdly, publication to a third party. To succeed in a defamation claim, the plaintiff must demonstrate that the defamatory words were published, in the sense that they were communicated to at least one person other than the plaintiff, since defamation is concerned with injury to reputation in the eyes of others and not with private insult or affront. In Nation Media Group Ltd v Alfred Mutua [2017] eKLR, this Court underscored that publication through mass media substantially aggravates defamation because of its reach, repetition, and permanence, particularly in the digital age. Kenyan courts have also recognized that each publication, including online republication, may constitute a distinct cause of action, subject to limitation principles. Closely related to publication is the question of actionability and proof of injury, and here Kenyan law retains the classical common-law distinction between libel and slander Libel, being defamation in permanent form — whether written, printed, broadcast, or digitally published — is actionable per se. In cases of libel, once the plaintiff establishes the other elements of defamation, injury to reputation is presumed, and the plaintiff is not required to prove actual damage in order to be entitled to general damages. This position has been affirmed in Kenyan jurisprudence, including in Selina Patani &Another v Dhiranji V . Patani[2019] eKLR (Court of Appeal) and Miguna Miguna v Standard Group Ltd & 4 Others [2017] eKLR (High Court). By contrast, slander — being defamation in transient form — is generally not actionable without proof of special damage, unless it falls within recognized exceptions, such as imputations of criminal conduct, professional incompetence, or unchastity. The rationale for this distinction lies in the presumed permanence and wider reach of libel, as opposed to the typically fleeting nature of slander. This presumption of injury in libel reflects the law’s recognition that reputational harm may be real yet difficult to quantify, and must be balanced, at the remedial stage, against the constitutional imperative under Article 33 to avoid disproportionate restriction of freedom of expression.*** 4. ***Fourthly, falsity and the burden of proof. To succeed in a defamation claim, the plaintiff must demonstrate that the defamatory statement was false, or at least not shown to be substantially true, since truth constitutes a complete defence to defamation and the law does not protect reputation founded on falsehood. While the claimant bears the overall burden of proving defamation, once the defendant pleads justification, the burden shifts to the defendant to prove the truth of the defamatory imputations. Truth is a complete defence, but it must be strictly proved. Phineas Nyagah v Gitobu Imanyara [2013] eKLR, this Court held that defamatory allegations must be justified by cogent evidence, failing which liability attaches. Kenyan courts have consistently held that allegations of criminal, corrupt, or immoral conduct demand a high standard of proof; and that suspicion, opinion, rumor, or unverified belief does not suffice. See George Mukuru Muchai v Standard Limited [2001] eKLR.*** 5. ***Finally, fault and malice. The law further requires proof of fault on the part of the defendant, in the sense that the defamatory statement must have been published with knowledge of its falsity, with reckless disregard for the truth, or without the exercise of reasonable care to verify its accuracy, depending on the circumstances of the publication and the availability of any recognized defences such as qualified privilege or fair comment. Malice, while not an essential element of the tort of defamation, assumes legal significance where it may be inferred from the circumstances of publication and operates either to defeat defences such as qualified privilege or fair comment or in the assessment of damages. Malice may be inferred from the circumstances of publication, including recklessness, failure to verify facts, knowledge of falsity, persistence in publication, or refusal to retract or apologise. In John Ward v Standard Ltd [2006] eKLR, the High Court held that malice may be inferred where a defendant acts with indifference to the truth or publishes defamatory matter without reasonable inquiry. Where malice is established, it defeats qualified privilege and operates as an aggravating factor in the award of damages.*** 6. The Appellant admitted to publishing and posting the defamatory statements on two WhatsApp groups to wit; ***BK SUPERSTAR*** and ***FULAMO FAMILY***, where both parties were members and membership thereof included other clan members totaling to about 300 persons. Publication was therefore proved. 7. As to whether the words complained off were defamatory and referred to the respondent? The appellant urged the court to find that the phrase “***fake nurse with a fake degree***” was not, in itself, sufficient to establish liability unless the Respondent demonstrated by evidence that the words referred to him, were false and that they lowered his character in the estimation of right‑thinking members of society. Further, the said words “***fake nurse with a fake degree***” was general in nature and could have applied to any nurse within the WhatsApp forums and that no member of the forums testified to having understood the words as directed at the Respondent. Therefore, identification was inferred rather than proved. 8. On the other hand, the Respondent’s submitted that the words complained off were grave allegations that directly attacked his professional integrity. He argued that in a regulated profession such as nursing, imputations of falsified qualifications are inherently defamatory and that the said words had caused him embarrassment, humiliation, and economic loss, as patients avoided his clinic and colleagues questioned his credibility. He pointed to his nursing registration number 19754 and clinic registration number 126893 and corroboration was established by PW2 regarding his professional standing. He thus urged the Court to find that the words complained of, were understood by members of the WhatsApp forums as referring to him and injured his reputation. 9. In ***Musikari Kombo v Royal Media Services Limited [2018] eKLR*** the Court of Appeal stated that: ***“The test for whether a statement is defamatory is an objective one. It is not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. In Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 the authors opined: “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.”*** 1. The proper inquiry is whether ordinary, reasonable members of society, considering the words in their natural and ordinary meaning and in their context, would regard them as lowering the Respondent’s reputation. In the present case, the words “***fake nurse with a fake degree***” plainly imputed dishonesty and incompetence in a regulated profession. Such imputations, by their very nature, are defamatory. 2. As to whether reference was established, In the present case, the tagging of the Respondent’s post, coupled with the absence of any other identified nurse within the forums by the Appellant, who could have been the subject of the said Snide remark, and also considering the context of subsequent exchanges made in the said WhatsApp groups, all point unmistakably to the Respondent as the recipient towards whom the subject words were made. 3. Turning to the question of falsity, it was the Appellant’s submission that the Respondent did not discharge the burden of proving that the words complained of were false. He argued that the Respondent merely asserted his qualifications without producing documentary evidence to demonstrate that he was indeed a registered nurse. He emphasized that no official records from the Nursing Council of Kenya or other regulatory authority were tendered, and that reliance on PW2’s testimony, being a colleague, was insufficient to prove falsity. 4. The burden of proving falsity, laid on the respondents doorstep. **The Halsbury’s laws of England, 4th Edition, Volume 17 at para 13 and 14** states that; ***“The legal burden is the burden of proof which remains constant through a trial; it is the burden of establishing the facts and contentions which will support the parties case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied in respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is essential to his case. There may therefore be separate burdens in a case with separate issues.*** ***{16} The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. These constitutes evidential burden. Therefore, while both legal and evidential burden initially rests upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As to weight of evidence given, by either side during the trial varies; so will the evidential burden shift to the party who would fail without further evidence.”*** 1. In the case of ***Evans Nyakwana Vs Cleophas Rwana ongaro ( 2015) eKLR*** it was held that *“****As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purpose of section 107(i) of the Evidence Act, Chapter 80 laws of Kenya. Furthermore, the evidential burden…… is cast upon any party, the burden of proving any particular fact which he desired the court to believe in its existence. That is captured in section 109 and 112 of the law that proof of that fact shall lie on any particular person….. The appellant discharged that burden and as section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”*** 1. This position was upheld in the case of ***Monga v HB (Civil Appeal E877 of 2024) [2025]*** where the court held that; ***“In effect, if one says an issue is true and another that it is false, it shall remain false until the party with a duty to prove that it is true discharges that burden. There can be no burden to prove a negative. This is encapsulated in the common maxim of ei qui affirmat non ei qui negat incumbit probation, that is, the necessity of proof lies with the person who affirms, not the person who denies. The duty on the appellant was to prove that the words referred to him, were defamatory and were published by the Respondent. It was the duty of the Respondent to prove that the words were true”*** 1. The Respondent testified and stated that he was a registered nurse Number 19754 and his clinic too was registered under number 126893. PW2 also confirmed that the respondent was his colleague at Tabaka Sub County Hospital in Mandera County. On a balance of probabilities, this evidence did establish that the respondent, indeed was a registered and practicing nurse. See Kimaru J in ***William Kabogo Gitau Vs George Thuo & 2 others (2010) 1 klr 526*** stated that; ***“ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleased in his case are more likely than not to be what took place.in percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred*.** 1. The evidentiary burden then shifted to the appellant to disapprove this fact or to produce any material to substantiate the allegation of falsified qualifications, but he failed to do so and thus the trial magistrate finding that falsity was proved cannot be disturbed. 2. On malice, principle is that malice may be inferred where defamatory words are published without justifiable cause, or where the defendant acts recklessly, indifferent to their truth or falsity. Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may also be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. 3. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. The failure to inquire is into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement, was false or did not care whether it be true or false will be evidence of malice. ***See Godwin Wachira vs. Okoth [1977] KLR 24; J P Machira vs. Wangethi Mangi.*** 4. Back to the facts herein, the deliberate tagging of the Respondent’s post by the Appellant, coupled with the absence of any factual foundation for making the said allegation, and/orwithout the exercise of reasonable care to verify its accuracy points to his recklessness and malice. 5. Having found that the words complained of were defamatory and actuated by malice, the next issue is the appropriate award of damages, which serves to compensate for injury to reputation, vindicate the claimant’s name, and console him for the distress suffered. Aggravated damages may be awarded where malice is established, or where the defendant persists in unfounded allegations. 6. As earlier noted, the tort of libel is actionable perse. Hence, the respondent need not prove that he has suffered damages. In the case of ***Nation Media Group & Another v Hon. Chirau Ali Makwere C.A No. 224 of 2010 (UR)***, the Court of Appeal discussed in detail factors to consider in awarding damages for defamation. The Court cited ***Tunoi, J.A. in Johnson Evan Gicheru Vs. Andrew Morton & Another (2005) eKLR*** where guidelines in assessing damages were set out as stated in the case of ***Jones v. Pollard [1997] EMLR 233***: 1)***The objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published, and any repetition.*** ***2)The subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself.*** ***3)Matter tending to mitigate damages, such as the publication of an apology.*** ***4)Matters tending to reduce damages.*** ***5)Vindication of the Plaintiff’s reputation past and future.*** 1. The Appellant placed significant weight on the argument that the Respondent had not demonstrated any tangible injury to his reputation. That contention is misplaced in law. In actions founded on libel, injury to reputation is presumed, and a claimant need not prove specific loss in order to recover general damages. The record shows that the words were circulated within WhatsApp groups, deliberately tagged to the Respondent, and framed in a manner that questioned his professional qualifications, which caused him embarrassment, anxiety, and reputational distress. Both on principle and on the facts, the submission that no harm was proved cannot be sustained. 2. The Court of Appel in the case of ***Johnson Evans Gicheru (Supra)*** further stated that, in action of libel, the trial court in assessing damages is entitled to look at the whole conduct of the Defendant from the time libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action and in court during the trial 3. Consequently, applying the principles set out above to the facts before me, and also taking into consideration that the appellant failed to withdraw, retract on his statement and/or to apologize, I do find that the trial Magistrate did not error in his estimation of the damages awarded nor did the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle in awarding the said damages. **H. DISPOSITION** 1. Derived from the above analysis of the facts and the law, I do find that this Appeal lacks merit and the same is dismissed with costs to the Respondent. 2. It is so ordered **Dated, signed,** and **delivered** in open court at **MARSABIT** this **15th** day of **JULY 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** Delivered on the virtual platform, Team this **15th** day of **JULY 2026.** **In the presence of**: - ……………………………………………………..Appellant …………………………………………………. Respondent ………………………………………………. Court Assistant