https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12970

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT MILIMANI** **MILIMANI COMMERCIAL COURT** **CMCC NO. E3387 OF 2024** **THOMAS OYUGI MOINDI t/a MOINDI &** **CO. ADVOCATES**.......................................................................**PLAINTIFF** **-VERSUS-** **LARRY NAKUDANA SANKEET**................................................**DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff, Thomas Oyugi Moindi t/a Moindi & Company Advocates, instituted this suit against the Defendant, Larry Nakudana Sankeet, by a Plaint dated 4th July 2024. The suit arises from a WhatsApp communication allegedly authored and transmitted by the Defendant following service upon him of pleadings in proceedings instituted against him by the Plaintiff in his professional capacity as an Advocate acting for his client. The Plaintiff's case is that the said communication contained words which were defamatory of him and were calculated to injure his character, integrity, competence and professional reputation. 2. The Plaintiff pleaded that on 14th April 2024, he received instructions from Anna Bwari Mecha to institute proceedings against the Defendant and two other persons concerning a dispute relating to her parcel of land. Pursuant to those instructions, the Plaintiff instituted **ELC Case No. E040 of 2024 at Kajiado**. 3. It was pleaded that the Pleadings in the said proceedings were subsequently forwarded to the Defendant through WhatsApp on 6th June 2024. Following service, the Defendant allegedly responded by sending the impugned communication to the Plaintiff's office mobile telephone. 4. The Plaintiff contends that the words complained of were false and malicious and portrayed him, inter alia, as unethical, greedy, unqualified to practise law, fraudulent, corrupt, criminal, incompetent and unfit to practise as an Advocate. It is the Plaintiff's case that the publication lowered him in the estimation of right-thinking members of society and exposed him to hatred, ridicule and contempt. 5. The Defendant failed to enter appearance and did not file a Defence. **Interlocutory Judgment was entered against him on 19th August 2025 by Hon. S. N. Muchungi.** The matter thereafter proceeded to formal proof on **15th July 2026**. 6. The entry of Interlocutory Judgment did not, however, dispense with the Plaintiff's obligation to prove the ingredients of the tort of defamation and the reliefs sought. The Plaintiff was still required to place before the Court sufficient evidence to establish his claim on a balance of probabilities. 7. The Plaintiff consequently called two witnesses, produced documentary and electronic evidence and made written submissions. The Court has considered the pleadings, the evidence, the documents produced, the submissions and the applicable law. 8. **Plaintiff's Evidence** 9. PW1 was Thomas Oyugi Moindi, the Plaintiff. He testified that he is an Advocate of the High Court of Kenya and was admitted to the Roll of Advocates in 1996. He stated that he had received instructions to act for his client in the underlying land dispute and, pursuant to those instructions, instituted proceedings against the Defendant and other parties. 10. PW1 testified that after the institution of the proceedings, the pleadings were served upon the Defendant through WhatsApp. It was following that service that the Defendant sent the impugned WhatsApp communication to the Plaintiff's office mobile telephone. 11. PW1 produced the WhatsApp communication and the electronic evidence contained in his bundle, including the certificate relating to the electronic evidence. He testified that the communication contained allegations attacking his integrity, professional competence, qualifications and suitability to practise as an Advocate. 12. PW1 maintained that the allegations were false and malicious and were intended to injure his professional reputation and standing. 13. PW2 was Bridget Tuwei, an employee of the Plaintiff's law firm. She testified that she was responsible for handling the office mobile telephone and that she received the Defendant's WhatsApp communication after the pleadings in the Kajiado proceedings had been sent to the Defendant. 14. PW2's evidence is material because it establishes that the communication was received by a person other than the Plaintiff. Her evidence therefore addresses the essential element of publication in an action for defamation. 15. The Defendant did not call any evidence to controvert the Plaintiff's evidence. There was consequently no evidence before the Court by which the Defendant sought to establish the truth of the allegations, fair comment, qualified privilege, justification or any other defence available in law. **Plaintiff's Submissions** 1. The Plaintiff submitted that he had proved the tort of libel and urged the Court to enter judgment in his favour. On quantum, he proposed an award of **Kshs.5,000,000/= as** General Damages and **Kshs.2,000,000**/= as punitive, exemplary and aggravated damages. 2. The Plaintiff relied, inter alia, on **Tanganyika Transport Co. Ltd v Ibrahim Nooray (1961) EA 55; J.P. Machira t/a Machira & Co. Advocates v Wangethi Mwangi & Another [1998] eKLR; Daniel Musinga t/a Musinga & Co. Advocates v Nation Newspapers Ltd [2005] eKLR; Wangethi Mwangi & Another v J.P. Machira t/a Machira & Co. Advocates [2005] eKLR** and **Miguna Miguna v Standard Group Ltd & Others [2017] eKLR**. **Analysis and Determination** 1. From the Pleadings, evidence and submissions, the following issues arise for determination: 1. Whether the Defendant published the words complained of and whether they referred to the Plaintiff; 2. Whether the words complained of were defamatory of the Plaintiff; 3. Whether the publication was false and malicious; 4. Whether the Plaintiff is entitled to general damages and, if so, the appropriate quantum; 5. Whether the Plaintiff is entitled to aggravated damages and, if so, the appropriate quantum; 6. Whether the Plaintiff is entitled to exemplary or punitive damages; 7. Whether the Plaintiff is entitled to an apology and retraction; 8. Whether the Plaintiff is entitled to a permanent injunction; 9. Who should bear the costs of the suit; and 10. Whether interest is payable and from what date. **Whether the Defendant published the words complained of and whether they referred to the Plaintiff** 1. Publication is an essential ingredient of the tort of defamation. The defamatory words must have been communicated to at least one person other than the person allegedly defamed. 2. In the present case, PW1 testified that the Defendant sent the impugned communication to the Plaintiff's office mobile telephone. More importantly, PW2, who was responsible for handling the office mobile telephone, testified that she received the WhatsApp communication. 3. The evidence of PW2 therefore establishes that the communication was received by a person other than the Plaintiff. The electronic evidence produced by the Plaintiff further supports the fact of publication. 4. I therefore find that publication has been established on a balance of probabilities. 5. As regards reference, the circumstances in which the communication was made leave no doubt that it concerned the Plaintiff. The communication followed directly upon the institution of proceedings by the Plaintiff in his professional capacity as an Advocate acting for his client and challenged his conduct, integrity and professional competence. 6. The Court of Appeal in **Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR)** reiterated that a claimant in defamation must establish, among other matters, that the defamatory publication concerned the claimant. The Court further emphasised that the test is whether the words would be understood by a reasonable person to refer to the claimant. 7. I accordingly find that the words complained of were published by the Defendant and referred to the Plaintiff. **Whether the words were defamatory** 1. The next question is whether the words complained of were defamatory. 2. The law of defamation protects a person's reputation, namely the estimation in which that person is held by others. The test is objective. The Court considers the natural and ordinary meaning which the words would convey to an ordinary reasonable person. 3. The Court of Appeal in **Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR)** restated the principle that a statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society, exposes the claimant to hatred, contempt or ridicule, or causes the claimant to be shunned or avoided. 4. In the present case, the allegations complained of were not merely expressions of dissatisfaction with the conduct of litigation. They attributed to the Plaintiff conduct involving dishonesty, fraud, corruption, criminality and professional incompetence. 5. Such allegations strike directly at the integrity and professional standing of an Advocate. An Advocate's reputation for honesty, integrity and competence is fundamental to the confidence reposed in him by clients, courts and members of the public. 6. The Court of Appeal's decision in **J.P. Machira t/a Machira & Company Advocates v Wangethi** Mwangi & Another [1998] KECA 46 (KLR) is particularly instructive because it concerned defamatory allegations against an Advocate. The Court recognised that statements concerning an Advocate's professional conduct may be seriously libellous where they convey imputations inconsistent with professional integrity. 7. Applying the objective test to the words complained of, I find that the words were plainly capable of lowering the Plaintiff in the estimation of right-thinking members of society and of injuring his professional reputation. 8. I therefore find that the words complained of were defamatory of the Plaintiff. **Whether the words were false and malicious** 1. The Plaintiff pleaded that the allegations were false and malicious. 2. The Defendant did not enter appearance, did not file a Defence and did not participate in the proceedings. Consequently, there was no evidence from the Defendant demonstrating that the allegations were true or substantially true, or that they constituted fair comment, were protected by qualified privilege or were otherwise justified. 3. I emphasise, however, that the absence of a Defence does not by itself automatically prove malice. The Court must consider the circumstances of the publication. 4. In **J.P. Machira t/a Machira & Company Advocates v Wangethi Mwangi & Another [1998] KECA 46 (KLR)**, the Court of Appeal considered the circumstances in which malice may arise in a defamation claim and recognised the significance of the defendant's conduct and the circumstances surrounding publication. 5. In the present case, the publication was made immediately after the Defendant had been served with pleadings in proceedings in which the Plaintiff was acting professionally for his client. Rather than addressing the allegations through the judicial process or confining his response to the dispute, the Defendant attacked the Plaintiff personally and professionally. 6. The allegations were grave. They impugned the Plaintiff's honesty, integrity and professional fitness. 7. There is also no evidence that the Defendant ever apologised, retracted or sought to correct the allegations. 8. In the circumstances, I find that the Plaintiff has established, on a balance of probabilities, that the words complained of were false and malicious. **Quantum of Damages** **General Damages** 1. Having found the Defendant liable for defamation, the Court must determine the appropriate compensation. 2. The assessment of damages for defamation is not based on a fixed tariff. The Court is required to consider the particular circumstances of each case, including the gravity of the libel, the status of the Plaintiff, the extent and mode of publication, the effect upon the Plaintiff, the conduct of the Defendant and the need to vindicate the Plaintiff's reputation. 3. The Court of Appeal in **Mworia & Another v Githinji & Another [2024] KECA 6 (KLR)** reiterated the principles applicable in assessing damages for libel, including the gravity of the publication, the circulation of the medium, the subjective effect on the Plaintiff, the conduct of the Defendant thereafter, matters in mitigation and the need for vindication. The Court further observed that although proof of actual financial loss is not necessary to establish liability, evidence of actual loss is relevant to the assessment of damages. 4. In the present case, the imputations were undoubtedly serious. Allegations that an Advocate is fraudulent, corrupt, criminal, unqualified or professionally incompetent strike at the very foundation of his professional reputation. 5. The Plaintiff has also demonstrated that he has been an Advocate since 1996. The defamatory words therefore concerned a professional reputation built over many years. 6. The Court must, however, also consider the extent of publication. The evidence establishes a WhatsApp communication sent to the Plaintiff's office mobile telephone and received by PW2. There is no evidence before the Court that the communication was published in a newspaper, broadcast on radio or television, posted on a public website or disseminated through a public social-media platform. 7. There is similarly no evidence of widespread republication or repetition of the defamatory allegations. 8. The Court must therefore distinguish this case from cases involving mass publication to a large audience. 9. In **Nation Media Group Limited & Another v Damaris Wairimu Kuria [2018] KEHC 4022 (KLR)**, the High Court upheld an award of Kshs.1,500,000/= general damages and Kshs.500,000/= aggravated damages. The case involved publication in the media and evidence concerning the effect of the publication upon the claimant. 10. The authority is useful as a comparative guide but the present case is materially different in the extent of publication. Here, the evidence establishes a restricted WhatsApp communication rather than a newspaper publication with potentially extensive circulation. 11. In **Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR)**, the Court of Appeal confirmed that the seriousness of the allegations and the effect of the publication are important considerations in assessing damages. The Court in that case upheld a substantially higher award because of the circumstances and reach of the publication. 12. Likewise, in **Mworia & Another v Githinji & Another [2024] KECA 6 (KLR)**, the Court of Appeal cautioned against taking into account unproved losses when assessing damages and emphasised that damages must be anchored in the evidence. 13. In the present matter, although the Plaintiff testified as to the injury to his professional reputation, there was no specific evidence of loss of clients, loss of professional briefs, loss of income or other identifiable financial consequences directly attributable to the publication. 14. The Court must therefore balance two competing considerations: first, the grave nature of the allegations and the Plaintiff's professional standing; and second, the limited extent of the publication and the absence of evidence of widespread dissemination or consequential financial loss. 15. Having considered the authorities, the circumstances of the publication and the need to vindicate the Plaintiff's reputation without making an award that is disproportionate to the injury proved, I find that **Kshs.1,200,000/=** is a fair and reasonable award of general damages. 16. I therefore award the Plaintiff **Kshs.1,200,000/=** as general damages for defamation. **Aggravated Damages** 1. The Plaintiff also seeks aggravated damages. 2. Aggravated damages are distinct from ordinary general damages. They may be awarded where the circumstances of the Defendant's conduct have increased the injury suffered by the Plaintiff. The Court may take into account the manner in which the publication was made, the motive of the Defendant, persistence in the publication, failure to apologise or retract, and the Defendant's conduct before and during the proceedings. 3. The Court of Appeal in **Nation Media Group Limited & Another v Damaris Wairimu Kuria [2018] KEHC 4022 (KLR)** upheld an award of Kshs.500,000/= aggravated damages in circumstances where the Defendants failed to apologise and the publication caused additional injury to the claimant. 4. Similarly, the principles identified in **Johnson Evans Gicheru v Andrew Morton & Another [2005] eKLR**, as well as the line of authorities dealing with aggravated damages in defamation, recognise that the conduct of a defendant after publication is relevant in determining whether the injury has been aggravated. 5. In the present case, the Defendant made grave allegations concerning the Plaintiff's professional integrity and competence. There is no evidence of an apology or retraction. 6. The Defendant also failed to enter appearance and did not participate in the proceedings. While such non-participation cannot by itself justify an award of aggravated damages, it means that there is no evidence of any subsequent effort by the Defendant to mitigate or correct the injury caused by the publication. 7. The absence of an apology or retraction is particularly relevant because a defamatory allegation concerning professional integrity, once made, may continue to affect the reputation of the person concerned unless withdrawn. 8. I nevertheless bear in mind that the publication was limited and that there is no evidence of widespread dissemination or republication. I therefore consider it inappropriate to award the full amount sought by the Plaintiff. 9. Taking all the circumstances into account, I find that **Kshs.300,000/=** is a fair and proportionate award of aggravated damages. 10. I accordingly award the Plaintiff **Kshs.300,000/=** as aggravated damages. **Exemplary and Punitive Damages** 1. The Plaintiff also sought punitive and exemplary damages. 2. Exemplary damages are exceptional in nature and are not awarded merely because a Defendant has acted maliciously. The Court must be satisfied that the circumstances fall within the recognised categories warranting a punitive award. 3. The Court of Appeal in **Mworia & Another v Githinji & Another [2024] KECA 6 (KLR)** declined to sustain a separate exemplary award where the necessary exceptional circumstances had not been established. The Court emphasised the need for a proper evidential and legal basis for an additional punitive award. 4. In the present case, although the publication was malicious and the Plaintiff is entitled to aggravated damages, there is insufficient evidence that the Defendant acted in circumstances warranting a separate punitive or exemplary award. 5. The injury arising from the manner of publication and the Defendant's failure to retract has adequately been reflected in the award of aggravated damages. 6. I therefore decline to make a separate award of exemplary or punitive damages. **Apology and Retraction** 1. The Plaintiff also seeks an apology and retraction. 2. An apology and retraction may be an important remedy in a defamation claim because damages compensate for and vindicate the injured reputation, while an apology may correct the false impression created by the publication. 3. In **Nation Media Group Limited & Another v Damaris Wairimu Kuria**, the failure to apologise was considered relevant in assessing aggravated damages. 4. In the present case, the evidence establishes a limited WhatsApp publication. There is no evidence that the defamatory communication was made to a large public audience or remains accessible on a public platform. 5. I therefore consider that a written apology and retraction directed to the Plaintiff would constitute an appropriate and proportionate corrective remedy. 6. I accordingly direct the **Defendant within fourteen (14) days of service of this Judgment, to issue to the Plaintiff a written, signed and unqualified apology and retraction, expressly identifying the impugned WhatsApp communication, acknowledging that the statements contained therein were defamatory of the Plaintiff, and withdrawing and retracting the said statements in their entirety. The apology and retraction shall be delivered to the Plaintiff or his Advocates by letter and a copy shall also be transmitted to the Plaintiff through WhatsApp.** **Permanent Injunction** 1. The Plaintiff seeks a permanent injunction restraining the Defendant, his servants, agents, employees and/or handlers from publishing, circulating or causing to be published any defamatory matter concerning the Plaintiff. 2. The grant of an injunction in defamation proceedings is discretionary and must be considered with caution. An injunction must also be sufficiently precise so that the person against whom it is issued knows the conduct prohibited. 3. In the present case, there is no evidence of continuing publication or threatened republication of the particular defamatory communication. The publication proved before Court was a WhatsApp communication. 4. The broad injunction sought against the publication of **"any defamatory matter"** concerning the Plaintiff would potentially extend beyond the specific words and circumstances proved in this suit and could inadvertently restrain lawful communication or comment. 5. I therefore decline to grant the permanent injunction in the broad terms sought. **Disposition** 1. In the result, and having considered the evidence, the submissions and the applicable principles of law, I find that the Plaintiff has proved his claim for defamation on a balance of probabilities. 2. The Plaintiff has established that: 1. The Defendant published the impugned WhatsApp communication; 2. The communication referred to the Plaintiff; 3. The words complained of were defamatory; 4. The allegations were false; and 5. The publication was malicious. 3. On quantum, the Court has considered the seriousness of the imputations, the Plaintiff's professional standing as an Advocate, the need to vindicate his reputation, the limited extent of publication, the absence of evidence of widespread dissemination and the absence of specific evidence of consequential financial loss. 4. The Court has also considered the comparable authorities, including ***Nation Media Group Limited & Another v Damaris Wairimu Kuria***, where Kshs.1,500,000/= General Damages and Kshs.500,000/= Aggravated Damages were upheld, while recognising that the circumstances and extent of publication in that case were materially different. 5. I have further considered **Mworia & Another v Githinji & Another [2024] KECA 6 (KLR)**, in which the Court of Appeal emphasised that damages must be founded upon the evidence and confirmed the importance of considering the actual effect and extent of the publication rather than relying upon unproved losses. 6. The total award of **Kshs.1,500,000.00** adequately compensates the Plaintiff, vindicates his professional reputation and recognises the additional injury occasioned by the malicious nature of the publication and the absence of an apology or retraction. **Final Orders** Accordingly, Judgment is hereby entered for the Plaintiff against the Defendant in the following terms: 1. General damages for defamation ................**Kshs.1,200,000.00** 2. Aggravated damages .......................................**Kshs.300,000.00** 3. **Total .................................................................. Kshs.1,500,000.00** 4. The claim for separate exemplary and punitive damages is dismissed; 5. **The Defendant shall, within fourteen (14) days of service of this Judgment, issue to the Plaintiff a written, signed and unqualified apology and retraction, expressly identifying the impugned WhatsApp communication, acknowledging that the statements contained therein were defamatory of the Plaintiff, and withdrawing and retracting the said statements in their entirety. The apology and retraction shall be delivered to the Plaintiff or his Advocates by letter and a copy shall also be transmitted to the Plaintiff through WhatsApp.** 6. The prayer for a broad permanent injunction restraining the Defendant from publishing "any defamatory matter" concerning the Plaintiff is **declined**; 7. The Plaintiff shall have the **costs of the suit**; 8. The award of **Kshs.1,500,000.00** shall attract interest at court rates from the date of this Judgment until payment in full; and 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **19.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 19TH DAY OF AUGUST,2026** **In the Presence of :** Mr.Muigai Holding Brief for Mr.Manyara for the Plaintiff Defendant in person Court Assistant: Phoebe.