Defamation

Defamation is defined as publishing false and defamatory statements concerning another person
without lawful justification. In Kenya, the law on defamation is derived from both statutes, defamation
Act Cap 36, and common law.

There are two types of defamation

i) Libel

ii) Slander

The distinction between the two is based on the form of expression in the sense that libel is made in
some permanent & physical form e.g. writing, printing, pictures, effigies, etc.

Slander on the other hand takes the form of spoken words or some other form that is not permanent
whether visible or audible. When slander is done by way of wireless broadcasting then it shall be treated
like a publication in permanent form

Libel is said to be actionable per se

Slander, requires actual proof of damage on the part of the plaintiff, for example, e.g. loss of business,
job, or any other lost opportunity.

Elements of Defamation
i.) The statement must be defamatory

ii.) It must refer to the plaintiff

iii.) It must be published to another person other than the Plaintiff

i.) The statement must be defamatory

A statement is said to be defamatory if it injures the Plaintiff’s reputation. The traditional test laid down
in the case of Parmiter v Coupland (1840) is to ask whether the words complained of were calculated to
injure the reputation of another by exposing him to hatred, contempt, or ridicule.

However, another test was defined in the case of Sim v Stretch (1936) Lord Atkin stated that the phrase
exposing the victim to hatred, ridicule, and contempt appeared to be too narrow, and therefore, the test
should be whether the words tended to lower the plaintiff in the estimation of right-thinking members
of the society, generally.

Courts have been applying the latter test and they look at the tendency of a likelihood that the words
were likely to injure the Plaintiff’s reputation, it is not relevant whether the words were believed or not.
To determine whether a statement is defamatory, the court looks at the plaintiff’s reputation rather than
physical appearance. It is therefore said that even though insults and jokes can bruise the plaintiff’s ego,
they do not necessarily lower the plaintiff’s reputation

In the case of Berkoff v Burchill [1996] The Defendant, a journalist wrote an article about the plaintiff
who was an actor and a film director in which it was said that the plaintiff was hideously ugly. It was held
by a majority that under the circumstances of this case, such words could be said to be defamatory.
According to Neill LJ, words may be defamatory even though they neither impute disgraceful conduct to
the plaintiff nor any lack of skill or efficiency in the conduct of trade or business or professional activity if
they hold him up in contempt, scorn, or ridicule or if they tend to exclude him from the society.

However, insults, which do not diminish a man's standing among other people do not find an action for
libel or slander. In the context of this case, the remarks about the plaintiff gave the impression that he
was not merely unattractive in appearance but repulsive.

To say this of a person in the public eye, who makes his living as an actor is capable of lowering his
standing in the estimation of the public and making him an object of ridicule. Phillips LJ agreed with
Justice Neill when he stated, "The law of defamation protects reputation and reputation is not
generally dependent upon physical appearance. Exceptionally there are cases where words can be said
to be defamatory, even though they do not attack the character of the person of the plaintiff. The
question must be determined in the right of the actual words used and the circumstances in which they
are used."

Millet LJ dissented and stated "It is a common experience that ugly people have satisfactory position in
society and it is a popular belief that the truth by which am not able to vouch that ugly men are
attractive to women, I have no doubt that the words that are complained of were aimed to ridicule the
plaintiff but I do not think they made him ridiculous or lowered in reputation in the eyes of ordinary
people. The line between mockery and defamation may be sometimes difficult to draw but it is one
thing to ridicule a man and quite another to expose him to ridicule."

Father Samuel Waweru v Samuel Mburu & The Standard, the Kenyan high court adopted a test of
defamation that took into account the two tests set out in the Parmitter Case & Sim Case. The court
stated "There is no wholly satisfactory definition of a defamatory imputation and three formulae have
been particularly influential

1. would imputation tend to lower the plaintiff in the estimation of right-thinking members of society
generally?

2. would imputation cause others to shun or avoid the plaintiff?

3. would the words tend to expose the plaintiff to hatred, contempt, or ridicule?

Innuendo - Indirect defamation

The general rule is that words should be defamatory in their natural and ordinary sense.

However, words can also be defamatory by inference or by implication. This is where the Defendant
does not directly state, his / her opinion of the Plaintiff but makes it possible for a conclusion to be made
about the Plaintiff’s character. Lewis v Daily Telegraph (1964), The plaintiff was the chairman of a co.
that was being investigated for undisclosed offenses. The Defendant which was a newspaper recorded
the story as follows "Officers of the city of London are enquiring into the affairs of Rubber
Improvement Ltd and its subsidiary companies. The investigation was requested after the criticisms of
the chairman’s statements and the accounts by a shareholder at a recent company meeting. The
chairman of the co. is Mr. John Lewis.” The Co. was subsequently absolved in the investigation and the
Plaintiff sued for defamation alleging that the words implied that the Co. was being run fraudulently and
dishonestly to such an action that police suspected that crimes had been committed. It was held that the
words complained of were merely a reflection of the true state of affairs which was that the co. in
question was being investigated, no reasonable person would lead the conclusion that an offense had
been committed.

Defamation by innuendo was found to have been established in the case of Cassidy V Daily Mirror
newspapers. The Standard v Scholastic Omondi & Another The plaintiff worked as a judicial officer in a
juvenile court. The Defendant was a newspaper. The appellant published a photograph of the
respondent with his uncle on two separate occasions. In the first instance, the photo was accompanied
by the caption "THRILL: Swingmen are a source of great excitement for children as a plaything but they
can be dangerous if not used properly." In the second, the same photo was published with the caption
"for, children enjoy the company of both parents, breaks leave them, completely devastated." In this 2nd
instance, the photo was in the context of a story entitled "The Pain of Divorce" which explored the
effects of divorce in a family. None of the persons in the photo was named as photos might have been
only used for illustration purposes. Held The publishing of the picture in the middle of an article
discussing divorce and setting up a caption that alluded to the effects of divorce suggested that the
parents of the children in the picture had divorced and therefore is defamatory.

ii) The Plaintiff must be identified as the person that has been defamed and this identification
can either be expressed by name or by description or impliedly by reasonable inference.
The test is whether the person reading or hearing the statement would believe that it refers to the
Plaintiff.

E. Hulton & Co. v Jones [1908-1910] The Plaintiff by the name of Artemus Jones was a barrister who
sued the Defendant in respect of an article appearing in their newspaper that had referred to a certain
Artemus Jones who had engaged in certain immoral acts who was living with a woman who was not his
wife. The Defendant argued that the Artemus Jones they referred to was a fictional character who had
no relation to the plaintiff whatsoever. It was found that the plaintiff was well known to the Defendant. It
was held that the Defendant were liable because any reasonable person reading the statement would
conclude that it was referring to the Plaintiff - Artemus Jones.

In the case of East African Standard v Gitau (1990), The Defendant published a picture of a damaged car
belonging to the Plaintiff. It was accompanied by words which were held to be defamatory of the
plaintiff. The Defendant argued that since the plaintiff himself was not in the picture, then he could not
claim defamation because he could not be identified. It was held that the mere absence of the plaintiff’s
picture or even a direct reference to the plaintiff did not mean there was no defamation because any
person who knew the plaintiff and saw the picture could know that it was the plaintiff who was the
subject of the story.
Standard Newspaper v. scholastica Omondi & Another. Where defamatory statements refer to a group
of people, it is not generally open to any member of the group to say that the words relate to him
personally unless there is something in the publication of or in the circumstances in which it is published
that points to him/her.

In the case of Knupffer v London Express Newspaper (1944), The plaintiff who was a London resident
was the head of the party known as Young Russians. The Defendant published an article in their
Newspapers suggesting that the party was linked with Adolf Hitler & they intended to introduce Hitler's
ideology into the country. The article did not mention the plaintiff expressly and no references could be
made regarding his identity. The Plaintiff sued for defamation, alleging that the words referred to him. It
was found that the party had only 24 members in Britain. It was held that the Defendant was not liable
for defamation. The court stated " When the plaintiff is not named, the test which decides whether
words used referred to him is the question whether the words are such as would reasonably lead
persons acquainted with the plaintiff to believe that he was the person being referred to. In the present
case, the statement complained of is not made concerning a particular individual whether named or
unnamed but concerning a group of people spread over several countries including several numbers. No
facts were proved in evidence which would identify the appellant as the person individually referred to."

In certain cases, an allegation can be said to be understood to refer to a certain group or a person
especially where there is close association in their common activity.

Ajuang v Magala It was held that a reference to "The present officials" of a certain organization who
were 6 in number related to them personally. Where a reference is to a group of persons, then, as long
as it was possible to identify themselves of that group from the statement that is made there shall be
defamation.

iii) Must be published to another party other than the plaintiff

The defamatory statement must be published to a person other than the plaintiff to make it known to
the others.

Publication means the nature of the material/words known either orally or by broadcasting or as a -
statement in a book/newspaper, graffiti, etc.

Alexander Mwinyi v Lewa Conservancy (2004) The court stated: "It is trite law that no matter how
defamatory the statement can be, there can be no action, unless & until that such a statement is
communication by the Defendant to a person or persons other than himself."

The publication must have been intended for the 3rd party or it must have been reasonably anticipated
that the 3rd party might come across the information.

Theaker v Richardson [1962]

The Defendant wrote a defamatory letter to the plaintiff a married woman. The letter was opened by the
plaintiff’s husband. He thought that election officials had sent the letter for the purpose of distributing
election addresses. It was held that there was publication to a third party because the nature of the
letter was such that a reasonable person would have concluded that it was not specifically addressed to
the plaintiff and would have proceeded to open the envelope. After all, an election issue is not
necessarily a private matter. The opening of the envelope by the husband is something that would have
been reasonably anticipated.

Defenses to Defamation (Defamation Act Cap 36)

i) Justification

ii) Fair comment on a matter of public interest

iii) Privilege either qualified /absolute privilege

i.) Justification

Sec 14 of the Defamation Act is to the effect that where the statement complained of is the truth, then it
provides a complete defense. That statement does not have to be true it has only to be substantially
true. Where the allegations are not true, then there shall be no defense of justification.

Peter Waithaka Chege v George Mbuguss & another (1999) The Defendants published in their
newspaper an article that is held to be defamatory. They pleaded justification. They had alleged that the
plaintiff as editor of a newspaper was incompetent & unqualified for the job. They stated that the
plaintiff consistently made spelling & grammatical errors in his editing and that he only remained in his
job because of some other influence. The plaintiff produced evidence to show his qualifications as an
editor and the court found that the defendant's statement was false and therefore justification was not
available as a defense.

Justice Kuloba in the case of Machira v EA Standard Ltd (1996) stated "A defendant is permitted to plead
justification only where it is clear that the allegations he makes are true in fact or substantially so. He
cannot be allowed to state out a version of a statement which differs materially from the complained of
to justify the version".

In the case of Grobbelaar v News Group Newspapers [2002] The plaintiff was a professional footballer
who had played for Liverpool FC and Southampton FC. He sued the Defendant for publishing an article
that suggested that he had conspired with certain persons to fix certain matches for money. The
defendant pleaded justification. The Plaintiff called evidence about the games in question to support his
argument that he had never deliberately let in any goals. It was held that justification was not available
for the defendant because they couldn't prove the truth of the statement. After all, it would have been
difficult to establish that the plaintiff had deliberately underperformed. Hobhouse LJ stated, " The law is
that so far as the issue of justification is concerned, the publisher of the defamatory statement must
allege & prove that the statement was substantially true nor more nor less."

ii) Fair Comment (Defamation Act Section 15)

If someone is being sued for saying something that mixes facts and opinions, they can defend
themselves by arguing that their opinion was fair based on the facts they mentioned. So, even if they
didn't prove every fact they stated, if their opinion was reasonable considering the facts they did prove,
they might not be found guilty of libel or slander. It's about balancing the truthfulness of the facts with
the fairness of the opinion expressed.

iii) Privilege
 a) Absolute Privilege (Defamation Act Section 6 Newspaper reports of judicial proceedings)
A fair and accurate report in any newspaper of proceedings heard before any court exercising
judicial authority within Kenya shall be privileged. Provided that nothing in this section shall
authorize the publication of any blasphemous, seditious, or indecent matter.
b) Qualified Privilege (Defamation Act Section 7. Qualified privilege of newspapers)
(1) Subject to the provisions of this section, the publication in a newspaper of any such report or
other matter as is mentioned shall be privileged unless such publication is proved to be made
with malice.
(2) In an action for libel in respect of the publication of any such report or matter as is mentioned
in Part II of the Schedule to this Act, the provisions of this section shall not be a defense if it is
proved that the defendant has been requested by the plaintiff to publish, in the newspaper in
which the original publication was made, a reasonable letter or statement by way of
explanation or contradiction, and has refused or neglected to do so, or has done so in a
manner not adequate or not reasonable having regard to all the circumstances.
(3) Nothing in this section shall be construed as protecting the publication of any matter the
publication of which is prohibited by law, or of any matter which is not of public concern and
the publication of which is not for the public benefit.

Remedies to defamation

i.) Damages

ii.) injunction

iii.) Apologies

i.) Damages

This is monetary compensation paid to the plaintiff by the defendant as a result of a finding of breach or
culpability by the court.

In defamation damages can be either of two types;

a.) Compensatory- to make good the harm suffered by the plaintiff in his/her reputation. They can either
be special or general damages. Special damages are awarded after the exact financial loss suffered by
the plaintiff as a result of the defamatory words is proved. The law is that the plaintiff must first allege
that she/he suffered special loss and then prove by the way of production of documents.

General damages are awarded by the courts as provided in sec 16(A) of the Defamation Act which
provides that the court shall assess the amount of damage payable such amount as it may deem just.
Therefore, the general damages depend on the court's assessment of what it considers sufficient to
make good the harm suffered by the plaintiff as a result of the defamation. It is therefore said that
general damages in defamation claims are at large. Despite this, courts have developed some general
guidelines that can be used to assess certain damages although there's no limit as to what may be
considered as long as may be relevant to the plaintiff.

Johnstone Evans Gicheru v Andrew Morton & Another The appellant was the judge of the court of
appeal and the respondents were the author and publisher of a book, titled 'Moi The Making of an
African. The book contained allegations that suggested that the appellants were presiding over a
commission investigating the murder of a politician John Ouko had so conducted himself in a corrupt
manner. The court found the allegations to be false and accessed damages of 2.25 million. The appellant
however sought an enhancement of the award on the ground that the trial court did not take into
account the measure of the libel, the failure of the respondents to apologize for the libel, or even
expunge the offending passages from the book. In enhancing the damages to 6 million, the court stated
that damages in the libel case are at large in the sense that the court may consider any relevant factor
and that there are generally no fixed principles for such determination. The court considered the
following factors relevant to this court that

i.) The appellant was blameless

ii.) The false statements were without foundation

iii.) The allegations were in print and therefore in a permanent form that could be accessed for
generations.

iv.) That the conduct of the respondents showed that they did not regret publishing the information and
that they were ready to do so over all over again.

b.) Exemplary/punitive

The court can grant either or both at the same time.

ii.) Injunction

This is about using court orders to stop someone from continuing to spread harmful rumors or lies. If it
seems like the person won't stop, the court can issue an injunction, which is a legal order to prevent
further damage to the victim's reputation. This can be temporary or permanent.

If someone sues for defamation, they can ask for a temporary order (ex parte injunction) to stop more
harm while the main case is pending. They can even do this without the defendant being present.
However, this temporary order usually lasts for just 14 days unless the court decides otherwise after a
hearing with both sides. (inter partes hearing)

If the main case proves the defendant did harm, the court might issue a permanent injunction, which
means the defendant can never spread those lies again. These remedies can be used together to protect
the victim's reputation.

iii.) Apologies