Defamation

Defamation is defined as publishing false and defamatory statements concerning another person
without lawful justification. In Kenya, the law on defamation is derived on both statutes,
defamation Act Cap 36, and common law.
There are two types of defamation
i) Libel
ii) Slander
The distinction of the two is based on 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 on hand taken form of spoken words or some other form that is not permanent
whether visible or audible
When slander is done by the 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 of the part of the plaintiff for example e.g. loss of
business, job or any other lost opportunity.
However, there are four exceptions in which the plaintiff does not have to prove damage, in this
case, it is said that the slander is actionable per se

i) Imputation of criminal conduct

If the defendant imputes criminal conduct that is punishable by imprisonment, the slander is
actionable per se.

Gray v Jones (1939) 1 All ER 739

The Defendant said to the Plaintiff "You are a convicted person, I will not have you here."
The Plaintiff was held liable in slander without proof that the Plaintiff was put in jeopardy of
prosecution.
ii) Imputation of certain contagious diseases
For instance, orally accusing someone of having a venereal disease. It is a moral issue where one
is considered to be immoral hence adverse consequences.
iii) Imputation of unchastity against a woman
Section 4 of the Defamation Act provides that after imputation of unchastity against any woman
or girl, it shall not be necessary to proof for an essential damage.
iv) Imputation of unfitness in business
Section 3 of the Defamation act provides that the plaintiff does not have to prove damage where
imputation relates to the Plaintiff’s office profession, calling, trade or business.

Elements of Defamation
1. The statement must be defamatory
2. It must refer to the plaintiff
3. 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 traditionally test has laid down in the case of Parmiter v Coupland (1840) 6 MCE W. 105
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) T& R 669
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 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] 4 All ER 1008

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 found an
action for libel or slander. In the context of this case, the remarks of about the plaintiff gave the
impression that he was not merely unattractive in appearance but actually 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 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."

Other examples
Where the words allege dishonesty, then they have to be defamatory.
Eg in the case of Machira v Wangethi Mwangi
The Defendant alleged that the Plaintiff an advocate had stolen money belonging to a client.
The Defendant had published pictures in the Daily Nation showing a lady holding the Plaintiff
by the collar and a tie in a fighting stance. Next to the picture was the caption "an angry business
woman collars a high court advocate yesterday in a punch-up that brought the court proceedings
to a standstill. The fight started at the corridors." These were other words suggesting that the
plaintiff had embezzled funds belonging to the lady in the picture which funds had been paid to
him after he did a case for her.
On the day of incident, the plaintiff visited the Defendant’s office had a meeting with their
editors and gave his version of the story.

The Plaintiff stated that there is no fight between him and the lady, that he never fought back
after she assaulted him, that the dispute between them was actually related to a sale transaction
that the lady was not his client and that he had not taken any of her monies as alleged.
The Defendant nevertheless published their version of the story, even after the Plaintiff had
given them documents proving the truth.
It was held that the publication by the Defendant was false and that those allegations were
capable of injuring the Plaintiff as a lawyer.
The court further found that the Defendants were activated by malice because they deliberately
ignored the facts that were given to them by Plaintiff.

Mathew Kyalo Mbobu v Rose Mbithe Ndetei HCCC No. 155 2004

Father Samuel Waweru v Samuel Mburu & The Standard

The Kenyan high court adopted a test of defamation that took into account the two tests that were
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
i) would be imputation tend to lower the plaintiff in the estimation of right thinking
members of society generally.
ii) would be importation tend to cause others to shun or avoid the plaintiff.
iii) 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) AC 234

The plaintiff was the chairman of a co. that was being investigated for undisclosed offences.
The Defendant which was a newspaper recorded the story as follows
"Officers of the city of London are enquiring to 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
actions 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 offence 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 respondents with his uncle on two separate
occasions.
In the first instance, the photo was accompanied by the caption "THRILL: Swingmen are source
of great excitement children as a plaything but they can be dangerous if not used properly."
In the second, same photo published with caption "for, children enjoy the company of both
parents, breaks leave them, completely devastated."
In this 2nd instance, photo was in context of story entitled "The pain of Divorce" which explored
the effects of divorce in a family.
None of the persons in the photo was named of it was possible photos only used for illustrate
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 my defamatory.

ii) The Plaintiff must identified as the person that has been defamed and this
identification can either be express 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] All ER Rep 29
The Plaintiff by the name of Artemus Jones was a barrisster who sued to Defendant in respect of
an article appearing in their newspaper which 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 in fact 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) EA 678

The Defendant published the picture of a damaged car belonging to the Plaintiff.
The picture 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 in 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.

Section 13 of Defamation Act

Standard Newspaper v. scholastica Omondi & Another.
Where the defamatory statements refers 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 which
points to him/her.

In the case of Knupffer v London express Newspaper (1944) Ac 176

The plaitiff who was a London resident was the head of the party known as Young Russians.
The Defendant published as article in their Newspapers suggesting that the party was linked with
Adolf Hitler & their intention was to introduce Hitler's ideology into the county.
The article did not mention the plaintiff expressly and no references could be made regarding to
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 as not liable in 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 organisation who were 6 in
number related to them personally.
Where a reference is to a group of persons, then, as long as it possible to identify themselves of
that group from the statement that is made then 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 the material / words known the either orally or by broadcasting or
as an - statement in a book / newspaper or graffiti etc.

Alexander Mwinyi v Lewa Conservancy HCCA No. 1039 of 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 be 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] 1 WLR 151

The Defendant wrote a defamatory letter to the plaintiff a married woman.
The letter was opened by the plaintiff’s husband.
He thought that the letter had been sent by election officials 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 if was not specifically addressed to the
plaintiff would have proceeded to open the envelop because an election issue is not necessarily a
private matter
The opening of the envelop by the husband is something that would have been reasonably
anticipated.

Defences to Defamation
i) Justification
ii) Fair comment on a matter of public interest
iii) Privilege either qualified /absolute privilege.
The defences are set out in the defamation Act Cap 36
i) Justification
Sec 14 of the defamation Act is to the effect of that where the statement complained of is the
truth, then it provides a complete defence.
That statement does not have to be literally true it has only to be substantially true.
Where the allegations are not true, then there shall be no defence of justification.

Peter Waithaka Chege v George Mbuguss & another HC Civil Case No 1994 of 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 Defendants statement was false and therefore justification was not available as a defence.

Justice Kuloba in the case of Machira v EA Standard Ltd HC Civil Suit No 612 of 1996 stated
"A defendant is permitted to plead justification only where it is clear that the allegations he
makes are true in fact of substantially so. He cannot be allowed to state out a version of
statement which differs materially from the complained of to justify the version".

In the case of Grobbelaar v News Group Newspapers [2002] UKHL 40, [2002] 1 WLR 3024
The plaintiff was a professional footballer who had played for Liverpool FC and Southampton
FC.
He sued the Defendant for publishing an article which had 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 it was not possible for
them to prove the truth of the statement because it would have been difficult to establish that the
plaintiff had deliberately underperformed.
Hobhouse LJ stated that " 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 were substantially
true nor more nor less."

ii) Fair Comment

Defamation Act Section 15. Fair comment
In any action for libel or slander in respect of words consisting partly of allegations of fact and
partly of expression of opinion, a defence of fair comment shall not fail by reason only that the
truth of every allegation of fact is not proved if the expression of opinion is fair comment having
regard to such of the facts alleged or referred to in the words complained of as are proved.

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 absolutely 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 in the Schedule to this Act (Look at the schedule) 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 defence 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
1. Damages
Are monetary compensation paid to the plaintiff by Defendant as a result of finding of breach or
culpability by the court.
In defamation damages can be either of two types
i) Compensatory
ii) Exemplary / punitive
The court can grant either or both at the same time.
Compensatory damages are made 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 plaintiff as a result of the
defamatory words is proved.
The law is that the plaintiff must first of all allege that she/he suffered special loss and then prove
by the way of production of documents.
General damages are however 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 depends on courts own assessment as what it considers sufficient
to make good the harm suffered by plaintiff as a result of the defamation.
It is therefore said that general damages in defamation claims are at large.
In spite of this, courts have developed a number of 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 CA 1149 2.00
The appellant was the judge of 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 of
John Ouko had so conducted himself in a manner that was corrupt.
The court found the allegations to be false and accessed damages of 2.25 million.
The appellant however sought as enhancement of the award on the ground that the trial court did
not take in account the measure of the libel, the failure of the respondents to apologies 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 that they were ready to do so over all over again.

Read also:
Ochieng & Others v Standard Ltd (2004) I KLR 225
Obongo V. Kisumu municiple counce [c 1971] EA

2. Injunction
It is an equitable remedy that a court may grant where it appears that the Defendant is likely to
continue with the publication of the defamatory material.
The effect of the order of injunction is to stop any further damage to the plaintiff’s reputation.
It may be granted either as a temporarily order or permanent form.
Where the plaintiff files a case in relation to the defamation, the plaintiff may also seek an order
of temporary injunction to stop any other further publication before the main suit is heard or
determined.
The plaintiff may seek that order ex parte before the defendant makes an appearance in the
proceedings.
The civil procedure rules provides that ex parte injunction can only last for 14 days unless
otherwise confirmed by court following an inter partes hearing.
When the suit is concluded and if the plaintiff has established sufficient grounds, then, the court
may issue a permanent injunction the effect of which is the permanently ban the defendant from
publishing the defamatory material.
The two remedies can be awarded together.

3. Apology