Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNairobi Civil Appeal (arising from Nairobi HCCC No. 224 of 2016)

Munene v Gisesa & another (Civil Appeal 369 of 2019) [2025] KECA 2115 (KLR)

Court of Appeal of Kenya
5 December 2025
9,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed even prisoners can sue for defamation, but awarded only Ksh.200,000 because imprisonment limits reputational harm.

What this practically means

#

Executive summary

#
The appellant, a former police inspector serving a life sentence since 2009 for an unrelated murder, sued Nyabega Gisesa (the journalist) and Nation Media Group Limited over a 25th May 2016 Daily Nation article titled 'Notorious Police Squad Blamed for the Shooting', which named him as one of those involved in forming the notorious Kwekwe Squad, a unit linked to forced disappearances and the killing of businessman Jacob Juma. The High Court dismissed the suit, upholding the rolled-up defence of fair comment without malice on a matter of public interest. On first appeal, the Court of Appeal allowed the appeal in part by a 2-1 majority. The majority (W. Karanja, JA, with W. Korir, JA concurring) held the article defamatory on its face; that prisoners retain the constitutional right to reputation under Articles 28, 33(3) and 51 and the Persons Deprived of Liberty Act, 2014; and that republication without verification forfeits defences and imputes malice. However, only nominal damages of Ksh.200,000 were awarded, the trial court’s proposed figure being upheld because the appellant’s incarceration restricted his exposure to reputational harm and his witnesses’ relationships recovered after clarification. The High Court judgment of 7th March 2019 was set aside and substituted with a declaration of defamation and damages, plus costs with interest. In dissent, Gatembu, JA found the article fair comment on a matter of public interest, that the journalist had attempted to fact-check and the appellant declined to meet him, so no malice attached; he would have dismissed the appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the statement in question was defamatory of the appellant
  2. 2.Whether the trial Judge erred in failing to award damages to the appellant
  3. 3.Whether the appellant, a prisoner serving a life sentence, was capable of being defamed
  4. 4.Whether the defence of fair comment/honest opinion on a matter of public interest was available to the respondents
  5. 5.Whether malice could be imputed to the respondents for failure to verify the information before publication

Key legal issues

#
01

Whether the article was defamatory of the appellant

Holding

The article, which named the appellant by his real name as involved in the formation of the notorious Kwekwe Squad, was defamatory on its face when tested objectively against the reasonable person.

Reasoning

The test is objective: what a reasonable person would perceive, not the publisher’s intention. The article named the appellant as a founder or member of a notorious crack unit linked to forced disappearances and killings. Although the article reported allegations rather than established facts, naming the appellant as a founder member of the unlawful unit said to be responsible for Jacob Juma’s death was the appellant’s complaint and satisfied the elements of defamation.

p. 12
02

Whether a serving prisoner serving a life sentence is capable of being defamed

Holding

Yes. A prisoner retains all Bill of Rights rights except those clearly incompatible with detention, and the right to reputation endures even while within prison walls.

Reasoning

Articles 28, 33(3) and 51 read together protect prisoners’ dignity and reputation, and the Persons Deprived of Liberty Act, 2014 does not exclude the right to reputation. Incarceration does not absolve a publisher; it only affects the quantum of damages. Reputation matters to prisoners for privileges, remission and commutation through the power of mercy.

p. 11
03

Whether failure to seek the appellant’s side of the story amounted to malice

Holding

Failure to verify with the readily available appellant rendered the publication careless and reckless, imputing malice and defeating the fair comment defence.

Reasoning

The 1st respondent admitted he never sought to establish the truthfulness of the story from the appellant, who was readily available in prison. Responsible journalism requires fact-checking; the law imputes malice where publication is reckless, careless or made without due diligence, and such failure forfeits the statutory and common law defences.

p. 11
04

Quantum of damages

Holding

Although defamation was proved, only nominal damages of Ksh.200,000 were appropriate because the appellant’s reputational loss was minimal given his incarceration.

Reasoning

The appellant’s two witnesses, after clarification, resumed their relationship with him, and no prisoner or prison officer testified to any change in how the appellant was viewed. His interaction with the world of reasonable persons being restricted, the trial court’s nominal figure of Ksh.200,000 was not disturbed.

p. 12
05

Whether the article was fair comment on a matter of public interest (dissent of Gatembu, JA)

Holding

The dissent would have found the article fair comment on a matter of public interest, honestly held, with no malice imputable since the 1st respondent made efforts to fact-check and the appellant declined to meet him.

Reasoning

The dissent accepted that matters of forced disappearances, arbitrary arrests and extrajudicial executions are of grave public interest. On the record, the 1st respondent wrote to the Inspector General, made several trips to Kamiti, and the appellant declined to meet him; on the test of honesty, culpability does not attach. Accordingly the dissent would have dismissed the appeal.

Legal principles established

#
  • Prisoners and detained persons retain the right to have their dignity and reputation protected; imprisonment does not absolve a defendant of liability for defaming an inmate, though it bears on quantum.
  • A defendant who republishes defamatory material without verifying its truthfulness acts recklessly, is deemed to have published with malice or without reasonable care, and forfeits the defences available in defamation.
  • The defences of justification, fair comment and qualified privilege are unavailable where the defendant failed to ascertain the accuracy of the information before dissemination.

Court orders

#
  1. 1.Judgment of the High Court dated 7th March 2019 set aside and substituted with an order allowing the appellant’s suit to the extent that a declaration issues that the article was defamatory of the appellant
  2. 2.General damages for defamation awarded to the appellant in the sum of Ksh.200,000.00
  3. 3.Appellant awarded costs of the appeal and of the suit before the High Court, with interest at court rates
  4. 4.Interest on the decretal amount to accrue from the date of the High Court judgment until payment in full

The bench

#

Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

majority

Wrote the judgment

Held the article was defamatory of the appellant on its face; rejected the fair comment defence because the 1st respondent recklessly published without verifying; held prisoners retain the right to reputation; found defamation proved but awarded only nominal damages of Ksh.200,000, allowing the appeal in part.

Ultimately, my finding is that this appeal partially succeeds. I set aside the judgment of the High Court dated 7th March 2019 and substitute therefor an order allowing the appellant’s suit to the extent that I issue a declaration that the article in question was defamatory of the appellantp. 13
concurring

Wrote the judgment

Concurred wholly with the judgment and reasoning of W. Karanja, JA, adding nothing further.

I have had the advantage of reading the judgment in draft of my sister W. Karanja, J.A. and I wholly agree with the reasoning and conclusion therein.p. 13
dissenting

Wrote the judgment

Found the article was fair comment on a matter of public interest; held there was evidence the 1st respondent attempted to fact-check and the appellant declined to meet him, so malice could not be imputed; would have dismissed the appeal entirely.

I would therefore dismiss the appeal.p. 16
On appeal from
High Court of Kenya at Nairobi
Nairobi HCCC No. 224 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under Article 164(1) of the Constitution and the Court of Appeal Act (the court exercised its first-appeal duty to re-evaluate evidence)

Relief refused

#

Enhanced damages of Ksh.10,000,000 as urged by the appellant

The appellant, being in prison with restricted interaction with the world of reasonable persons, suffered only minimal damage and deserved only nominal damages; the trial court’s proposed figure was not disturbed

p. 13

Costs

The appellant is awarded costs of this appeal and those before the High Court with interest at court rates; interest on the decretal amount to accrue from the date of the High Court judgment until payment in full.

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.

Ultimately, my finding is that this appeal partially succeeds. I set aside the judgment of the High Court dated 7th March 2019 and substitute therefor an order allowing the appellant’s suit to the extent that I issue a declaration that the article in question was defamatory of the appellant, and he is awarded Ksh.200,000.00 as general damages for defamation.
p. 13Final orders / disposition
The right to their reputation is not one of the rights excluded under the Persons Deprived of Liberty Act, 2014. Indeed, the right endures even while within prison walls.
p. 11Reputation rights of prisoners
A defendant who republishes such material without verifying its truthfulness acts recklessly and is deemed to have published it with malice or without reasonable care, thereby forfeiting the statutory or common law defences available under the tort of defamation.
p. 10Republication and verification duty
A statement is defamatory of the person of whom it was published if it tends to lower him/ her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.
p. 10Definition of defamation
The fact that the appellant was a prisoner as at the time the defamatory article was published does not absolve the respondents of culpability.
p. 11Liability for defaming prisoners

Issues in the judgment

#
material

The majority and the dissent reach contradictory findings of fact on whether the 1st respondent sought the appellant’s side of the story before publication: the majority finds he never sought the appellant’s comments, while the dissent finds he made several trips to Kamiti and the appellant declined to meet him. This directly affects the malice holding.

material

The dissent attributes malice findings to the trial judge quoting a rolled-up fair comment defence, but the majority reverses the trial judge’s conclusion that no malice was proved; the conflicting holdings are not reconciled in a single line of authority.

minor

Minor typographical/orthographic errors in the transcript, e.g. 'Wilradeolia v Simpson' (likely Walfred/Grant v Torstar) and recurring 'sufiered/efiorts' OCR artifacts.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Munene v Gisesa & another (Civil Appeal 369 of 2019) [2025] KECA 2115 (KLR)", Case Analysis (2025). Nairobi Civil Appeal (arising from Nairobi HCCC No. 224 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2115/eng@2025-12-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.