Ambe v Sajero (Civil Appeal E331 of 2022) [2024] KECA 1687 (KLR)
The bottom line
#The Court of Appeal dismissed a Kenya defamation suit because WhatsApp screenshots lacked the required evidence certificate and the message never clearly identified the plaintiff.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant established the tort of defamation to the required standard of proof, being on a balance of probabilities
- 2.Whether the words posted in the WhatsApp group were directed at the appellant and identifiable as referring to her
- 3.Whether the unchallenged nature of the respondent's absence at the hearing shifted or discharged the burden of proof
- 4.Whether the screenshot evidence of the WhatsApp message was admissible in the absence of a certificate under section 106A of the Evidence Act
- 5.Whether the trial court erred in requiring corroboration from a member of the WhatsApp group and in dismissing the suit
Key legal issues
#Whether the tort of defamation was established to the required standard
It was not. The words did not objectively identify the appellant, did not insinuate the alleged defamatory imputations, and were an expression of pure frustration with a court order unlikely to be understood by the ordinary man as defamatory.
The test for defamation is purely objective. The elements - publication, reference to the plaintiff, falsity, defamatory meaning and injury to reputation - are conjunctive and must all be ascertained together. The court agreed with the trial judge that no external person would have identified the words as referring to the appellant, other group members expressed themselves independently, and the statement was one of pure frustration over the court order rather than an attack on any individual's reputation.
Effect of unchallenged evidence on the burden of proof
The respondent's failure to testify or challenge the evidence did not relieve the appellant of her burden; the burden of proof remains alive notwithstanding unchallenged evidence.
The court held that although the respondent did not challenge the appellant's evidence, that does not automatically entitle the plaintiff to the reliefs sought. The burden of proving the tort on a balance of probabilities persists. The appellant's failure to call an independent WhatsApp group member witness who could testify to viewing her differently, and the husband PW2's failure to show how he viewed her differently, meant the evidence of injury to reputation was not weighty.
Admissibility of screenshot evidence under section 106A of the Evidence Act
The screenshots, being electronic records, required a certificate under section 106A of the Evidence Act; absent the certificate they were inadmissible and the case built on them failed.
The substance of the appellant's case emanated from a screenshot of the respondent's message taken by her husband. The court concurred with the trial judge that such evidence ought to have complied with section 106A of the Evidence Act. The certificate envisaged by that provision was not adduced, rendering the screenshot inadmissible and the appellant's case, which was hinged on it, without foundation.
Duty of a first appellate court
A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind the trial court's advantage of seeing and hearing the witnesses.
Following Peters vs. Sunday Post Limited, the court restated that it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if hearing the matter for the first time. The court applied this duty, re-evaluated the chats and testimony, and concluded that the trial court's findings captivatingly analyzed the evidence and were laudable.
Legal principles established
#- Unchallenged or uncontroverted evidence does not discharge a plaintiff's burden of proof; the burden of establishing the tort remains alive and does not vitiate on account of unchallenged evidence.
- The elements of defamation are conjunctive; all must be established together and none is autonomous over the other.
- One of the mandatory requirements of defamation is that the defamatory statement must be directed at, or reasonably capable of referring to, the plaintiff; words not addressing any person in particular cannot found the tort.
- Electronic evidence in the form of screenshots of messages is inadmissible unless accompanied by a certificate contemplated under section 106A of the Evidence Act.
- A first appellate court must reconsider and re-evaluate the evidence on record and draw its own conclusions, while giving due allowance to the trial court's advantage of seeing and hearing the witnesses.
Court orders
#- 1.The appeal is dismissed
- 2.There are no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi HCCC No. 172 of 2018
- Jurisdiction invoked
- First appellate jurisdiction under Article 164(1) of the Constitution and the Court of Appeal Act (appeal as of right against the judgment of the High Court)
Relief refused
#Setting aside of the trial court's judgment of 29th April 2021 and allowance of the appellant's suit
The appellant failed to demonstrate that the trial court was in error; the words were not directed at her, the elements of defamation were not conjunctively established, and the screenshot evidence was inadmissible for want of a section 106A certificate
General damages of Kshs. 5,000,000.00 for defamation
The suit having failed, no damages could be awarded; the tort was not established
Costs
The appeal is dismissed but with no orders as to costs (each party to bear their own costs).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, we come to the conclusion that the appeal herein lacks merit and it is dismissed but with no orders as to costs.
The burden of proof in establishing this tort remains alive and existing and does not vitiate on account of unchallenged evidence.
the elements of defamation are conjunctive. In other words, they must be ascertained all together and none is autonomous over the other
One of the mandatory requirements of defamation is that it must be directed at the allegor
the absence of that certificate contemplated therein rendered the screenshot inadmissible and the appellant’s case despondent
Issues in the judgment
#Internal date discrepancy: the pleading and narrative describe the publication as occurring on 19th May 2008 in one passage and 19th May 2018 in another, though the suit was filed on 20th June 2018.
Garbled/typographical passage in the trial court's quoted judgment regarding PW2's evidence and admissibility, rendering the sentence partially unintelligible.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ambe v Sajero (Civil Appeal E331 of 2022) [2024] KECA 1687 (KLR)", Case Analysis (2024). Civil Appeal No. E100 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1687/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.