Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR 3) Phinehas Nyagah vs Gitobu Imanyara [2013] eKLR ““Evidence of malice may 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. ….Malice may also be inferred from the relations between the parties… the failure to inquire in the facts is a fact from which inference of malice may properly be drawn.” The Plaintiff in Defence to Counterclaim, the plaintiff admitted she did publish an online video narrating the sequence of events of the Defendant’s unauthorized use of her image and relied on the Defence of truth honest opinion and fair comment. The Plaintiff denied contents of paragraph 18 &19 of the Counterclaim and put the Defendant to strict proof. The Plaintiff submitted that the Defendant did not pursue their Counterclaim and failed to establish the defamatory aspect of the Plaintiff’s Facebook post and failed to produce any evidence that the statement was untrue. In the case of Selina Patani & Anor vs Dhiranji V Patani [2019] eKLR C.A. referred to the following cases; a) Clement Muturi Kigano vs Hon Joseph Nyagah HCCC 509 of 2008 where the Plaintiff’s action failed for failure to produce the alleged defamatory statement as evidence of publication. In the instant case, the alleged defamatory statement is contained in the Defendant’s witness statement; paragraph 26 of Mary Osano’s statement. The list of Documents filed on 24th July 2017 refers to a transcript of Defendant’s defamatory video published on line. During the testimony by DW2, apart from relying on all documents/pleadings filed by Defendant, no reference was made to the transcript and who authored it. The Defendant referred to a video and post by the Plaintiff defaming the Defendant, why was the video not produced as evidence" How would the Court rely on a transcript to prove publication of the defamatory statement" Section 107 of the Evidence Act mandates that he who alleges must prove. The Defendant has not proved publication of the defamatory statement by the Plaintiff. b) In John Ward vs Standard Ltd HCC1062 of 2005 the ingredients of defamation were summarized as follows; - 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 The Plaintiff admitted publication of sequence of events that have culminated to these proceedings and relied on the Defences of Justification and Fair Comment as provided under Sections 14 & 15 of Defamation Act. The Plaintiff’s cause of action arose in 2016, the Plaintiff after sending demand letters through her advocate on 22nd July and 17th August 2016, the Defendant went silent on the matter. The captions at paragraphs 26 & 27 of the Supporting Affidavit to Notice of Motion filed on 15th May 2017 are excerpts of the Plaintiff’s statement(s) These words are a chronology of events of the Plaintiff’s claim against the Defendant as depicted and confirmed by the pleadings in Court. The Plaintiff’s image was used in June –July 2016 it was in social media platforms. The Plaintiff contacted the defendant through her Counsel and the Defendant responded through their Counsel. After the Plaintiff’s letter of 17th August 2016 there was silence, no response and the Plaintiff filed her claim in November 2016. Halsbury Laws of England 4th Ed Vol 28 Pg 23 provides; “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.” http://www.kenyalaw.org - Page 11/14