The Capital Markets Authority (CMA) and its chief executive officer Wycliffe Shamiah have been ordered to pay real estate firm Cytonn Investments Management Plc Sh10.5 million in damages for remarks aired six years ago about the firm.
The High Court ruled that Mr Shamiah’s statements linking Cytonn to possible “criminal” conduct misled the public and unfairly damaged the investment company’s reputation in the financial market.
The CMA and Mr Shamiah were the respondents in the case.
The development comes at a time the State has begun auctioning multi-billion-shilling real estate assets linked to Cytonn Investments in a bid to recover about Sh11 billion owed to more than 3,000 investors in the firm’s investment vehicles.
The government, through the Business Registration Service, has invited bids for several prime properties in Nairobi and Kiambu — including projects in Ridgeways, Ruaka and Karen — after the Court of Appeal last November upheld the liquidation of Cytonn High Yield Solutions and Cytonn Real Estate Project Notes.
The court found that Mr Shamiah’s televised remarks implying that the firm’s activities could amount to a criminal offence went beyond a regulatory warning and damaged Cytonn’s reputation. It said the contested statement was defamatory.
The ruling places fresh scrutiny on how regulators communicate warnings about financial institutions, while balancing investor protection with the reputational rights of private companies.
Court rebuke
“The CMA investigative unit is bound to deliver justice not only to the members of the public but also to the plaintiff. It cannot be lopsided. A referee who is presiding over a crucial match must be very careful in what he says lest the fans consider the match as already decided,” said the court.
It added that the CEO of CMA is certainly the overall boss and his remarks weigh heavily on the investigative unit, which as a matter of law must be independent.
Cytonn sued Mr Shamiah and the CMA in October 2021, accusing the regulator of publishing and broadcasting statements that portrayed the company as illegally raising money from the public.
In the suit, the investment firm sought an injunction, damages, an apology and a retraction over remarks made during media interviews and official communications.
Disputed remarks
Court records show the dispute centred on comments aired in a TV YouTube interview and a CMA communication warning investors against dealing with unlicensed entities.
In the broadcast, Mr Shamiah reportedly said Cytonn Investments Management was not licensed and suggested the matter could be reported to police as a criminal offence.
In response, Mr Shamiah maintained that the CMA’s statements were factual and issued in the public interest, arguing that the authority was simply warning investors to deal only with licensed and regulated entities to protect them from potential losses.
He said the contested statement was part of the CMA’s mandate to protect investors and promote transparency in the capital markets.
He maintained that the authority only clarified Cytonn’s licensing status and warned investors to deal with regulated entities so they could benefit from protections under the capital markets legal and regulatory framework.
No proof
However, the court held that the remarks created a strong public impression that Cytonn was involved in fraud or illegal fundraising.
It said that by calling the existence of the company “criminal” and invoking police action, the CMA boss created the impression that the firm was flouting the law.
“At the time when this statement was made, there was no credible proof that the plaintiff was a fraud because otherwise he could have given instances or evidence. Notably, if the Plaintiff was a fraud, why is the first defendant (Shamiah) calling for investigations or going to report to Police?,” the court asked.
The judge observed that the regulator produced no evidence from investors allegedly defrauded by Cytonn to justify the sweeping public accusations.
“When the defendant was accorded an opportunity to testify, it did not call a single member of the public who was defrauded,” it added.
The court said such remarks from a powerful market regulator carry enormous weight and could easily drive investors away from a business.
Damages award
The court noted that Cytonn Investments Management was operating as a private investment firm, not a public one.
According to the judgment, declaring the firm’s activities criminal ignored those legal provisions and wrongly portrayed the company as operating outside the law.
The court therefore concluded that the contested statements were defamatory, awarding Cytonn Sh10 million in general damages and Sh500,000 in aggravated damages, citing the wide media circulation of the remarks.
Cytonn Investments is a Nairobi-based investment and real estate firm founded in 2014 and known for offering investment products, real estate developments and fund management services.
The company grew rapidly by attracting thousands of investors into property projects and high-yield investment vehicles promising strong returns.
However, several of its investment products, including Cytonn High Yield Solutions, have faced scrutiny from regulators and complaints from investors over delayed payouts.
Cytonn told the court that the regulator’s remarks severely damaged its reputation and triggered panic among investors, leading to withdrawals from its investment products.
