The Law on Defamation in East Africa

By R K Solomon1

Gunigina M. Xavier vs Fenekansi N. Wakabala & Bugisu District Admn [1975] HCB 270

Karaka Sira vs Tiromwe Adonia [1977] HCB 26

Ganakwa Kaloli vs Erogu s/o Ecodu of Namassagali [1978] HCB 237

Otim Kezekia vs Akillenge George & Others [1982] HCB 42

Nanyili John & Anor vs Willington Waniala & Anor [1974] HCB 60

Ochieng Erinesti vs Obedo Nyambito [1975] HCB 117

J.C.K. Kitto (Dr) vs Chadwick & Nyanza Textile Industries Ltd [1975] HCB 101

Ssonko Gerald vs Okech Tom [1978] HCB 36

Sekitoleko Edirisa vs Attorney General [1978] HCB 193

Lugogobe Samwiri vs Lukungu Hussein [1980] HCB 18

Nkunda Enosh K. vs Attorney General and Anor [1980] HCB 118

Kisasi Coffee Growers & Processors Ltd vs Uganda Commercial Bank [1992-93] HCB 112

O.L. Lalobo vs E.Y. Lakidi [1970] HCB 103

O.J. Lalobo vs E.Y. Lakidi [1970] HCB 34

Lords Bar, Gertrude Bongyereire & Betty Masiko vs People Newspaper Ltd [1972] HCB 177

Kibirige Daudi vs Samuel Nkalubo [1972] HCB 126

Nkambo Samuel N. vs Rev. Daudi Kibirige [1973] HCB 2

J. Senteza Vs. Shell & B.R. Uganda Ltd & 2 others [1973] HCB 198

Onama vs Uganda Argus [1968] EA 511

The plaintiff was allegedly defamed by a former member of the Uganda Parliament during the
course of a debate in the National Assembly and the alleged statement was subsequently reported
by the defendant‟s newspaper on February 5, 1966. The Member of Parliament concerned was
alleged to have stated that the plaintiff had benefited from “loot” of ivory and gold to the value

1
LLB University of Dar es Salaam, Dip LP Law Development Centre
of Shs. 2½ million brought out of the Congo by Uganda soldiers and that the plaintiff was
responsible for the “looting”. There were further allegations of benefits from the loot being
received by other members of the Government and of an alleged plot to overthrow the Uganda
Constitution. These allegations were reported by the defendant‟s newspaper and the defendant
claimed that, as a fair and accurate report of parliamentary proceedings, the publication was
privileged. The same member of parliament called a press conference, stating that he was doing
so because he had checked and re-checked his information and was convinced that certain
individuals had personal interests in the conflict going on amongst the Congolese peoples. These
reasons were reported by the defendant‟s newspaper and the report then set out in detail the
member‟s proposals for a commission of inquiry to investigate four questions. At no stage did
the second report refer to the plaintiff. The plaintiff‟s claim was based upon an innuendo, in that
the publication was defamatory of the plaintiff by reason of its reference to the earlier
publication. Held: The principles in the English cases admitting publications other than that
relied upon by the plaintiff applied to the present case, although the initial publication in the
present case was a privileged. The plaintiff was entitled to refer to the initial publication to show
that the allegations made therein were repeated in the publication in issue. The statements made
in the initial publication were not necessarily implied into the subsequent publication and it was
only because of the special position of the witness that he concluded that the statement in issue
referred to the plaintiff. By themselves, the words complained of in the publication before the
court were not defamatory of the plaintiff. Plaintiff‟s claim dismissed with costs to the defendant.

Shah vs Uganda Argus [1972] 1 EA 80 (Court of Appeal at Kampala)

The appellant, together with other Asians, was arrested and detained under the Emergency
Powers Act for reasons not disclosed to them. Two days later the respondent‟s newspaper
published a report which stated that the Asians had been arrested in connection with an alleged
passport and immigration racket and in respect of suspected illegal practices in the Immigration
Department. Assistance of the public for the police was requested. The substance of the report
originated from a release by the Ministry of Information which newspaper was specially asked to
collect and which it was under a strong moral obligation to publish. The words passport and
racket had been added to the release as reported for journalistic impact. Held: There is a moral
and public duty to publish government announcements, provided that the matter concerned is of
public concern and published for the public benefit. The heading was correct and the article was
on the whole a reasonably accurate paraphrase of the announcement and accordingly privilege
was not lost. A plaintiff‟s damages may not be reduced by reason of rumours and gossip
circulating prior to the publication of the libel on him.

Olowo vs Attorney-General [1972] 1 EA 311 (HCU) High Court of Uganda at Kampala

The plaintiff claimed damages for libel arising out of the broadcast for general reception by the
Ministry of Information and Broadcasting of a song sung in a vernacular. The defendant
admitted that the words were defamatory of the plaintiff. The only issues were whether the
broadcast was libel or slander, and the quantum of damages. Held: The recording of the
defamatory words was of permanent nature and the broadcast of the recording was libel. The
defamatory meaning could only be understood by the persons who understood the language and
who were acquainted with the plaintiff and knew of the circumstances. The plaintiff‟s career as a
police officer was not affected. Damages of Shs. 8,000/- would be awarded.

Nkalubo vs Kibirige [1973] 1 EA 102 (Court of Appeal at Kampala)

The respondent sued the appellant for damages for libel and slander. The libel complained of was
a letter written in Luganda by the appellant to the District Commissioner of the area about a
dispute in the Church of Uganda in the area. The words of the letter in Luganda were not set out
in the plaint. The appellant contended that the letter was written on an occasion of qualified
privilege as the District Commissioner was properly interested in any dispute which might lead
to a breach of the peace. The appellant had accused the respondent of witchcraft and that this was
actionable without proof of special damage as a criminal offence. The alleged slander was not set
out in the pleadings, although it was mentioned in the opening address of counsel for the
respondent, and all the witnesses were cross-examined. Held: Where the alleged libel is in any
language other than English it must be set out in that language followed by a literal translation
into English. The respondent had an interest in informing the District Commissioner of the
dispute, and he had an interest in any dispute which might lead to a breach of the peace.
Accordingly the letter was written on an occasion of qualified privilege.

Charles Acire vs Myaann Engola [1992] IV KALR 143 (HCCS)

Held: In matters of defamation, the statement is first given the ordinary meaning. The statement
was libelous and had similar implications. To determine an award for general damages, regard is
had to the standing of the plaintiff, his loss and injury; the conduct of the defendant, and all
circumstances of the case sh.500, 000/= would be awarded.

Kanabo Sarah vs Editor of Ngabo & 3 Ors [1993] III KALR 92 (HCCS)

Held: The Newspaper report was defamatory because it was not justified. The defence of
justification would not be founded on untrue reporting. Fair Comment and or qualified privilege
had not been proved as defences because the report was erroneous. Looking at the social status
of the plaintiff the award of shs.75, 000/= as general damages for defamation would be adequate.

Daniel Oboth vs The New Vision News Paper [1993] VI KALR 143 (SCCA)

Held: Since the defendants had published the article only once and had not refused to apologies
since they were not asked to do so, there was no ground upon which the defendants could have
punitive damages awarded against them.

Mayanja A. Kakyama vs 1 Editor of Mulengera Newspaper 2 Capt. Ronald Kakoza 3 M/s

Economy Publication Ltd [1992] VI KALR 86 (HCCS)
Ntabgoba vs Editor-in-Chief the Newvision Newspaper and another [2004] 2 EA 234 (HCU)

The plaintiff was the principal Judge in charge of the High Court. An article appeared in the
defendant‟s publication which referred to a case he had handled in which he allegedly failed to
apply equal speed in granting bail to two persons charged jointly with an offence of abuse of
office. The article imputed a corrupt motive to the plaintiff. The defendant‟s publication failed to
publish an apology when formally contacted, and instead responded that it would call as a
witness the Chief Justice in the threatened libel case. The plaintiff testified that he was greatly
defamed by the said article, that his reputation had been severely damaged and that he was
entitled to an award of damages. The defence denied that the publication in question was
defamatory, and in the alternative pleaded fair comment. Held: Under the law, a man is entitled
to his good reputation. If a defamatory statement is made in a written publication, a tort of libel is
committed for which damages are awardable. For a statement to be defamatory, it must be false
and must lower the plaintiff in the estimation of the reasonable reader. The plaintiff has the
burden to prove that the words complained of are defamatory. If the words are defamatory in
their natural and ordinary meaning, the plaintiff only needs to prove publication. The plaintiff in
this case had testified and proven the publication and the injury to his reputation. The burden
then shifted to the defendant who failed to call any witnesses and had therefore failed to show
that the words did not import a defamatory meaning. The question of whether the words
complained of were capable of conveying a defamatory meaning was a question of law. The
Court was not bound to accept the evidence or opinions of witnesses but must make its own
finding on the ordinary meaning of the words, and whether a reasonable man would be likely to
understand the words in a defamatory sense. In this case, the Court would hold that the words
complained of did contain defamatory matter. To succeed in a defence of fair comment, the
defendant must show that the words are comment and not a statement of fact, that there is a basis
of fact (which is true) for the comment complained of and that the comment is on a matter of
legitimate public interest. Libel is a wrong actionable “per se” and the plaintiff need not prove
actual damage. In this case, the plaintiff went ahead and showed the devastating effect the
publication had on him physically and psychologically. The plaintiff would be entitled to general
damages, such sum as would be sufficient to compensate for the damage to his reputation,
vindicate his good name and take account of the distress, hurt and humiliation which the
defamatory publication has caused. In determining the measure of damages, the Court would
look at awards in related libel cases. The Court would also consider the nature of the libel, the
extent of the publication, the conduct of the defendant (including whether an apology was
offered) before and after the publication and during the hearing. In view of the conduct of the
defendant herein and the other factors considered an award would be made for general and
aggravated damages under one head of UShs 30 million. Exemplary damages would be awarded
where an award of general and aggravated damages was not sufficient, in view of the need to
teach the wrongdoer a lesson. To obtain exemplary damages, a plaintiff must show that the
publication was carried on for profit, that it was done with reckless disregard of the law or with
knowledge of its illegality, and that it was done because the prospects of material advantage
outweighed the prospects of material loss. In this case, the award of compensatory damages
would be sufficient to deter the defendant, and there would be no award of a further sum as
punitive damages. Judgment given for the sum of UShs 30 million as compensatory damages
(inclusive of exemplary damages), a permanent injunction against future defamatory publication,
interest and costs.

Thakers Ltd vs Bernard G Chipunguhelo (alias) Chips [1965] 1 EA 82 (High Court of

Tanzania at Dar-es-Salaam)

The appellant company published a report about a motor car accident in its daily newspaper
stating that the respondent and one K., who were prisoners of the first grade, were the occupants
of the car and that they had died as a result of the accident. It was also stated in the report that a
bottle of brandy was found in the car and that in the trouser pocket of K. there were found three
photographs of women and two letters “bearing the address of K. Street, Dar-es-Salaam”. The
respondent brought an action for libel alleging that the report was defamatory of him by
innuendo and the innuendo pleaded was that he was an habitual drunkard, profligate, of immoral
character, a person of no substance, unworthy of trust or confidence and that he had committed
an offence under the Prisons Ordinance. At the hearing it was conceded that the whole report
was untrue and there was evidence that K. Street was known to be associated with prostitutes. At
the trial it was argued that as the photographs were not alleged to have been found on the
respondent, there could be no reputation of immorality on his part but the magistrate rejected this
argument on the ground that it was very difficult to detach the respondent from whatever
imputations the publication created as the respondent and K. were associates. The magistrate
found that the words did bear the meaning so placed upon them by the respondent and awarded
damages in the sum of Shs. 4,000/-. On appeal. Held: The report about the discovery of a bottle
of brandy not only conveyed to one or more other persons the meaning, but were reasonably
capable of conveying the meaning, that the respondent, if not an habitual drunkard, was at least a
man who was given to drink, and that he was on that occasion in possession of the bottle of
brandy in dishonest and untrustworthy breach of prison regulations; and accordingly the report
was defamatory of the respondent in respect of the imputation of bibulousness and breach of
prison discipline. On the evidence the imputation of profligacy and immoral character against the
respondent could not be sustained because the photographs and the letters were not found on the
respondent and as such the innuendo of profligacy would not naturally occur to a responsible and
fair-minded third person. The damages awarded were high and bearing in mind that the
respondent‟s admitted conviction for the offence of theft by a servant was relevant to his
reputation for honesty and trustworthiness the damages should be reduced to Shs. 100/-.

Kanabo vs Editor in Chief Ngabo News Paper and others [1990–1994] 1 EA 149 (Supreme
Court of Uganda at Mengo)

The appellant successfully sued the respondents for general damages for defamation. The trial
Judge in awarding her damages observed that since she did not have a high social status the
award of Ushs 75 000 as general damages would suffice. She appealed against the quantum of
damages. Held: An appellate Court may only interfere with an award of damages when the
award is so inordinately high or low as to represent an entirely erroneous estimate. It must be
shown that the trial Judge applied a wrong principle or that he misapprehended the evidence in
some material respect, and so arrived at a wrong figure. The trial Judge was wrong to condemn
the appellant to low general damages solely on account of her social status since status alone is
not enough. It is necessary to combine status with the gravity or seriousness of the allegations
made against the plaintiff. Anyone who falsely accuses another of a heinous crime, such as
murder, should be condemned heavily in damages. Once an ordinary man or woman is defamed
seriously and is shunned by the public then it does not matter whether he or she is of high or low
status. In this case the appellant‟s business was affected, her friends shunned her because of the
false allegations made against her; this and not her status called for higher damages. It is trite law
that where the defence of justification fails then high damages may be awarded on that count.
Though the offer of an apology is not a defence, it does mitigate the damages. Appeal allowed.
UShs2.25 million general damages awarded.

Cheserem vs Immediate Media Services [2000] 2 EA 371 (Milimani Commercial Courts of

Kenya)

In the 17 March 2000 issue of The Independent, a weekly magazine, the lead article entitled
“Central Bank boss in major scandal” claimed that the Applicant (the Plaintiff in a defamation
action), then the Governor of the Central Bank of Kenya, had used his position to entice several
married women into relationships with him and that to cover up one of those liaisons, he paid or
caused to be paid a substantial sum of money to the husband of the affected lady. The articles
went on to make allegations concerning the Applicant‟s remuneration and family and concluded
with the promise that more was to follow. The Applicant instituted action for libel against
Immediate Media Services, the publisher of the magazine; Kiprono Kemei, its editor; and
Oluoch Akech, Nyambura Kamau and Wang‟ombe Mutahi who were its distributors. He also
made the instant application for an interlocutory injunction to restrain the Respondents from
publishing and distributing the article. Held: Applications for interlocutory injunctions in
defamation cases are treated differently from ordinary cases because they bring out a conflict
between private interest and public interest. Though the conditions applicable in granting
interlocutory injunctions set out in Giella vs Cassman Brown and Co Ltd [1973] EA 258
generally apply, in defamation case those conditions operate in special circumstances. Over and
above the test set out in Giella’s case, in defamation cases the court‟s jurisdiction to grant an
injunction is exercised with the greatest caution so that an injunction is granted only in the
clearest possible cases. The court must be satisfied that the words or matter complained of are
libellous and also that the words are so manifestly defamatory that any verdict to the contrary
would be set aside as perverse. The right to freedom of expression enshrined in section 79 of the
Constitution should be enjoyed by every news media, the press, newspapers, their journalists and
everybody in Kenya free from all drastic interference that may be caused by granting an
injunction unless there is a substantial risk of grave injustice and the private interest in
preventing the publications outweighs the public interest. Normally the court would not grant an
interlocutory injunction when the defendant pleads justification or fair comment because of the
public interest that the truth should out and the court aims to protect a humane, responsible,
truthful and trustworthy defendant. However the right to freedom of expression is not absolute
and the court will only protect a defendant free from malice and a plaintiff is also under the
Constitution entitled to protection of the law. As by the time of the hearing the Respondents
(Defendants in that matter) had not filed a defence nor intimated in their replying affidavit that
they intended to raise the defences of justification, fair comment or qualified privilege, the Court
could not take into account those pleas and on the merits, the Applicant had to demonstrate a
prima facie case with a probability of success that further publication would cause him
irreparable injury which might not be adequately compensated in damages and that the balance
of convenience lay in favour of preventing further damage to the Applicant‟s reputation. Giella
vs Cassman Brown and Co Ltd [1973] EA 258 applied. It is not right and might even be
dangerous for a journalist to rely solely on good faith. To be entitled to the protection of the law,
he should base the information he disseminates on factual truth. It does not always follow that
when there is a conflict between the public interest and private interest, public interest will
always prevail. It is a question of balancing the competing interests on a case by case basis and
doing what is just. Application granted.

Nation Newspapers Ltd vs Chesire [1976–1985] 1 EA 377 (Court of Appeal of Kenya at

Nairobi)

On 25 September 1977 the Sunday Nation reported the details of a golf tournament, which had
been held at Kericho. A photograph on page 30 depicted the winner of the trophy receiving it
from Mrs Chesire, the wife of the Kenya Tourist Development Corporation Manager, Reuben
Chesire. The lady depicted was not Mrs Chesire. Mrs Chesire‟s advocates wrote to the Nation
demanding an admission of liability, an apology and damages which were refused. The ensuing
plaint alleged by innuendo that the picture meant that the lady depicted was the lawful wife of
Mr Chesire, that Mrs Lydia Chesire was, consequently, not Mr Chesire‟s wife, but his concubine
and of loose morals and that hers and Mr Chesire‟s children were therefore illegitimate. The
evidence disclosed that Mrs Lydia Chesire was the headmistress of a School at Nakuru, that she
had married Mr Chesire monogamously in 1964 by the rites of the African Inland Church, that
they had three children; that she had reverted to her maiden name and had not lived with Mr
Chesire since 1970. It was also disclosed that Mr Chesire had lived with various women, had
three other children and that Mr Cheisre had filed a petition for divorce in 1977. One witness
said he saw the picture and its caption and assumed that Mr Chesire now had two wives and he
did not thereby lower his opinion of Mrs Chesire, whom he respected. The defence denied that
the picture bore any of those meanings and submitted that the English authorities were not
applicable because that country was monogamous, whereas in Kenya persons could at that time
lawfully contract five kinds of marriage, only two of which were monogamous, that the picture
and caption were not capable of bearing the alleged, or any, defamatory meaning and in any
event the mis-description would not lower Mrs Chesire in the eyes of right thinking members of
society in Kenya. Chesoni J found for Mrs Chesire and awarded her KShs 15, 000 damages.
Held: The time had not yet come in Kenya for the court to depart from the English authorities
expressly followed in East African Standard vs Gitau [1970] EA 678, because the Defamation
Act in 1970 had expressly provided that it was passed to consolidate and amend the law relating
to libel. The English authorities clearly established that the test of that which is understood by
the reader is objective and not subjective, and therefore the evidence did not have to establish
that the readers understood the words and picture in the defamatory senses pleaded, but that there
were facts or special circumstances, known to the recipients of the libel, which were sufficient to
lead a reasonable man to interpret the words in a defamatory sense. The witness called knew that
Mr and Mrs Chesire were married, and, though he did not himself think any the less of Mrs
Chesire, his knowledge of that fact was sufficient to have found the conditions for proof of
innuendo. Chesoni J was therefore enabled to find in law that the words and picture were capable
of the meanings alleged. The damages awarded were too high, in view of the facts inter alia, that
Mrs Chesire had been known for some years by her maiden name, that she had not cohabited
with Mr Chesire since 1970, and had not commenced proceedings for divorce. They would be
reduced to nominal damages of KShs 1, 000.

Odongkara vs Astles [1970] 1 EA 374 (High Court of Uganda at Kampala)

The defendant in the hearing of a single person said that a group of persons including the
plaintiff were meeting and that the purpose of the meeting was to work out a plan to cause chaos
and to overthrow the Uganda Government. The plaintiff, an Assistant Commissioner of Police,
sued the defendant two years later for damages for slander. The plaintiff pleaded by way of
innuendo that by the words spoken the defendant meant and was understood to mean that the
plaintiff had committed or was planning to commit a criminal offence punishable by
imprisonment. Held: The words in question were defamatory of the plaintiff in their natural and
ordinary meaning. It was therefore not necessary to decide whether the innuendoes were
justified. The implication of the words was that the plaintiff was guilty of treason; and no special
damage was necessary to the action. The words made specific reference to the plaintiff and were
defamatory of him. Damages should be assessed at Shs. 5,000/-.

Kibona vs Tanscan Timber Co Ltd [1995–1998] 1 EA 121 (HCT)

Held: In order for a statement to be defamatory the plaintiff has to prove that it contains false
material that disparages him in the eyes of right-thinking men, that it was published and that it
was made with malice. The plaintiff did not prove publication of the alleged defamatory letter
and his action on defamation must fail.

Dogra vs Barclays Bank [1974] 1 EA 540 (High Court of Kenya at Nairobi)

The plaintiff banked with the defendant bank. His salary was paid to the bank by the police for
whom he worked on a composite list on which his name was incorrectly recorded. For some time
the salary was in fact credited to his account but one month the defendant‟s employee did not
know where to credit the payment, put it into a suspenses account and made enquiries. Before the
enquiries had been successful, the plaintiff drew two cheques which were returned marked “refer
to drawer”. After rectification of the mistake both recipients accepted the plaintiff‟s explanation.
The plaintiff sued the defendant for general damages, alleging breach of contract and libel. No
special damages were pleaded. It was alleged that the bank was negligent in failing to credit the
account and that “refer to drawer” meant that the plaintiff had drawn a cheque which he knew
would not be met and that he was not worthy of credit. Held: On the facts the defendant had not
been negligent. The words “refer to drawer” did not bear a defamatory meaning. The words were
not published of the plaintiff in his capacity of a police officer. Nominal damages only would
have been awarded. Case dismissed.

Evan Maina vs Joseph Chibo [1964] 1 EA 668 (Supreme Court of Kenya at Nairobi)

The plaintiff and the defendant were both employees of the same company. The plaintiff‟s duties
included supervision of the staff and the defendant was a shop steward at the employers‟
establishment and a trade union official. The defendant wrote to the area manager of the
company a letter concerning the plaintiff which he considered defamatory in relation to his
employment and for which he brought an action claiming damages for libel. As the action was
undefended, the court considered whether the action was competent in view of s. 24 (1) of the
Trade Unions Act which provides that “a suit against a registered trade union or against any
member or official thereof on behalf of themselves and all other members of such trade union in
respect of any tortious act alleged to have been committed by or on behalf of such trade union
shall not be entertained by any court”. Held: S. 24 (1) of the Trade Unions Act provides that a
suit cannot be brought against a trade union itself or against any of its members or officials, so as
to make the trade union funds liable for the satisfaction of any judgment. S. 24 (1) of the Act
does not prevent anyone bringing a suit against an official of a trade union in his personal
capacity; accordingly the action against the defendant was competent. Judgment for the plaintiff
for Shs. 1,000/- damages.

Tanganyika Transport Co Limited vs Ebrahim Nooray [1961] 1 EA 55 (Court of Appeal at

Dar-es-Salaam)

The respondent, a carrier with a small business of passenger buses, sued the appellant company,
which had a large transport business, for damages for libel. A director of the appellant company
had written on behalf of his company to the respondent alleging that in contravention of the
respondent‟s licence one of the respondent‟s passenger vehicles had taken a load of cargo from
Lindi to Dar-es-Salaam. Copies of the offending letter were sent by the appellant company to the
Tanganyika Transport Authority and the police. Held: It was implicit in the allegation that the
respondent carried cargo, that he did so for hire or reward which would be an offence under s. 9
(1) of the Transport Licensing Ordinance; the letter was thus a libel on the respondent in the way
of his business. The director of the appellant company who had written the letter had said in
evidence that he had written to the plaintiff, the secretary of the authority and the police; this was
a clear admission of publication, and as regards interpretation whilst it might have been better to
call a witness from the authority, the plain meaning of the letter was obvious on its face and
required no explanation. A corporation is clearly liable for a malicious libel published by its
servant acting in the course of his employment.

Riddlesbarger and another vs Robson and others [1958] 1 EA 375 (Court of Appeal at Nairobi)

The appellants and respondents were all financially interested in the P. Company, which had
been incorporated and carried on business in Kenya. The respondents, all of whom were former
directors of the P. Company, brought an action alleging libel by the appellants, contained in two
letters written by the first appellant on behalf of the second appellant, to persons in the United
States. Held: The Kenya Colony Order in Council, 1921, confers jurisdiction not only over
matters, but also over persons who are within the Colony, including strangers and foreigners.
The principles of the Common Law are applicable to an action of this nature by virtue of art. 4 of
the Order in Council, and accordingly and action will lie in Kenya for a libel published abroad if
the libel was wrongful and actionable both in Kenya and the country of publication.

Geoffray De Souza vs George Brothers Limited [1957] 1 EA 115 (Court of Appeal at Nairobi)

The appellant has sued the respondent company for damages arising out of the publication of a
notice in a Uganda newspaper to inform the general public that Mr. Geoffray de Souza is no
longer in their employment and that they have no connection in his new concern nor will be
responsible for any commitments by him on their behalf. The appellant had left the respondent
company‟s employment and had set up in business himself under the name of “Geoffs Ltd.” No
complaint was made of the notice down to the words “his new concern” but it was alleged that
the remaining words implied that the appellant was the sort of man who might improperly enter
into commitments on behalf of the respondent company. It was also argued that the notice
contained “extraneous” matter which precluded the respondent company from contending that
the whole notice was published on a privileged occasion and that there was no evidence of
malice in fact. The action was dismissed. Held: The only reasonable construction which could be
put upon the latter part of the notice complained of was that it was nothing more than a plain
statement of fact consequent on the cessation of the appellant‟s connection with the respondent
company and was not capable of bearing any actionable or defamatory meaning.

EL Hoare and others vs Eric Jessop [1965] 1 EA 218 (Court of Appeal at Nairobi)

The respondent, J., had been managing director of F.B. Co. of which the appellants and one E.
were directors. After a dispute between J. on the one side and the appellants and E. on the other
J. was dismissed in 1959 but remained a shareholder. Later J. issued circulars to the shareholders
making allegations against the management of F.B. Co. and requesting support. To these
circulars the board replied, and their final reply was a circular to the shareholders dated July 14,
1961 (“the libel letter”) signed by the appellants in respect of which J. brought these proceedings
for damages for libel. In their defence the appellants relied on fair comment, justification and
qualified privilege. In his reply J. pleaded express malice. At the trial the judge found malice
proved against each of the appellants and gave judgment for the respondent for £4,750 and costs.
The appellants appealed on the grounds (inter alia) that the judge was wrong in finding that they
were actuated by malice in publishing the libel letter and wrong in finding that their plea of
justification had not been proved. Held: The appellate court is under a duty to evaluate the
evidence itself where it can be shown: – that the advantage of a trial judge in seeing and hearing
the witnesses would not be sufficient to explain his conclusions; or that the trial judge
misdirected himself on fact in a number of cases, which misdirections must have contributed to
his comments on credibility and to his conclusions; or that the trial judge has drawn incorrect
inferences of fact, which contributed to his conclusions. On the evidence, the libel letter was
prompted by J.‟s own circulars and the appellants were not actuated by any hatred or dislike of
J., but by a desire to put their side of the dispute. The court should examine the whole evidence
and the circumstances to determine whether the appellants‟ attack was fairly relevant or whether
it went beyond the exigency of the occasion; in this case the language used was neither
unnecessarily violent nor disproportionate to the exigency of the occasion and the appellants had
not abused their privilege. In an action for a joint libel in which the defendants rely upon
qualified privilege, proof that one or more of them were actuated by express malice will not
render liable the defendants against whom such malice is not proved. On the evidence the
defence of justification should have succeeded and it was irrelevant whether the defendants were
actuated by indirect or improper motives. As to fair comment, the correct test on the facts was
that suggested by Lord Porter in Kemsley vs Foot (1952) A.C. 345 at pp. 356, 357 and that
defence should also have succeeded. “The question, therefore, in all cases is whether there is a
sufficient sub-stratum of fact stated or indicated in the words which are the subject-matter of the
action, and I find my view well expressed in the remarks contained in Odgers on Libel and
Slander (6th Edn.), at p. 166. „Sometimes, however, he says, „it is difficult to distinguish an
allegation of fact from an expression of opinion. It often depends on what is stated in the rest of
the article. If the defendant accurately states what some public man has really done, and then
asserts that “such conduct is disgraceful,” this is merely the expression of his opinion, his
comment on the plaintiff‟s conduct. So, if without setting it out, he identifies the conduct on
which he comments by a clear reference. In either case, the defendant enables his readers to
judge for themselves how far his opinion is well founded; and, therefore, what would otherwise
have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has
been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation
of fact for which there is no defence but privilege or truth. The same considerations apply where
a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the
bare inference without the facts on which it is based, such inference will be treated as an
allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as
his inference from those facts, such inference will, as a rule, be deemed a comment. But even in
this case the writer must be careful to state the inference as an inference, and not to assert it as a
new and independent act: otherwise, his inference will become something more than a comment,
and he may be driven to justify it as an allegation of fact.‟ But the question whether an inference
is a bare inference in this sense must depend upon all the circumstances. Indeed, it was
ultimately admitted on behalf of the appellant that the facts necessary to justify comment might
be implied from the terms of the impugned article and therefore the inquiry ceases to be – Can
the defendant point to definite assertions of fact in the alleged libel upon which the comment is
made? and becomes – Is there subject-matter indicated with sufficient clarity to justify comment
being made? And was the comment actually made such as an honest, though prejudiced, man
might make?”

Khasakhala vs Aurah and others [1995–1998] 1 EA 112 (High Court of Kenya at Nairobi)

The plaintiff sued the three defendants seeking damages for defamation arising from an article
written by the first defendant which was carried in a newspaper published by the second
defendant. The third defendant was the printer of the newspaper in question. The plaintiff alleged
that the defendants had caused to be published in the Kenya Times a report entitled “Owiti
Murder Case: Khasakhala named”. The article recounted court proceedings from the previous
day at the trial of six people charged with the murder of a former MP. Below the article were two
photos, one of which was of the plaintiff. At the time of the report the plaintiff was a Member of
the Kenyan Parliament. The plaintiff alleged that the article, together with the photos, carried an
innuendo that he had been a part of the murder plot that had been executed by those standing
trial. He further claimed that the injurious falsehoods were malicious and intended to harm his
continued political leadership. The defendants filed a joint defence in July 1987 through an
advocate but the court records showed that they had subsequently changed advocates. After
several delays, the suit was mentioned in the High Court on 26 September 1997 when it was set
down for hearing on 29 October 1997. As neither the defendants nor their counsel were present
at the mention, the plaintiff‟s counsel was directed by the court to serve the hearing notice on
them. On 29 October 1997, the plaintiff and his counsel appeared before the court, ready to
proceed. The defendants did not appear but instead an advocate appeared who declared that he
was appearing for KTMT. This advocate informed the court that the second defendant no longer
existed and that it had transferred its business to KTMT. He, however, insisted that he was not
appearing for the second defendant. Counsel for the plaintiff insisted that the hearing proceed in
the absence of the defendants and that they be treated as having failed to appear after service
upon them. The plaintiff testified on his own behalf. Held: There was nothing on the record to
show that KTMT had applied to be made a party in the suit and it appeared that the defendants
and their advocates were engaged in a game of delaying tactics aimed at defeating the ends of
justice in the suit. From the evidence adduced before the court in the form of pleadings and
submissions, it was clear that the defendants‟ report portrayed the plaintiff as one of the
masterminds in the plot to kill the late MP. This portrayal was repeated three times in the report.
A comparison of the report published by the defendants with a copy of the proceedings at the
trial showed that nowhere in the court proceedings on the day in question was the plaintiff
portrayed as a mastermind of the plan or plot to kill the late MP. Section 6 of the Defamation Act
provided that reports of proceedings in a court of law were entitled to enjoy absolute privilege.
However, for a defendant to enjoy that privilege, he had to make a fair and accurate report which
did not contain blasphemous, seditious or indecent matter. In this instance, the report complained
of was far from being fair and accurate as it portrayed the plaintiff in a manner not justified by
the court proceedings. As a result the defendants did not meet the requirements of section 6 and
were not entitled to enjoy the privilege therein. The report published by the defendants was
defamatory in that it had the tendency to injure the reputation of the plaintiff, lower him in the
estimation of right-thinking members of society and cause him to be regarded with feelings of
hatred, contempt, ridicule, fear, dislike or disesteem. Though the defendants had the means to
establish that the story was not fair and accurate and to remedy the damage, they had declined to
do so; they had denied liability and refused to apologise. That was evidence of malice. Section
16A of the Defamation Act provided that damages with regard to libel of an offence punishable
by death was to be no less KShs 1 million. Section 7A provided that the Court could award an
additional amount where the defendant was unwilling to publish an apology. Though a person‟s
reputation had no actual value, the sum to be awarded in damages was at large and the Court was
free to form its own estimate of the harm taking into account all the circumstances. In this
instance, taking into consideration the plaintiff‟s profile, his status in society and the allegations
against him, he was entitled to an award of KShs 3 000 000 for defamation and KShs 300 000 for
failure by the defendants to publish a correction and apologise.

Biwott vs Clays Ltd [2000] 2 EA 334 (High Court of Kenya at Nairobi)

In 1999 the Plaintiff, a Minister in the Kenyan government, brought two separate actions against
a total of six Defendants seeking damages for defamation arising from statements made in a
book entitled “Dr Ian West‟s Casebook”. The Plaintiff alleged that at page 88 the book contained
words that, in their ordinary and natural meaning, were calculated to mean that the Plaintiff
somehow participated in or was involved in the murder of the late Kenyan Minister for Foreign
Affairs. The offending segment also allegedly contained words that implicated the Plaintiff in
corruption. The Plaintiff‟s testimony was to the effect that the words had damaged his reputation
by portraying him as a murderer and a corrupt person. The Defendants in the first action were the
book‟s British printer and publisher together with two Kenyan companies. The two Defendants
in the second action were W, a leading UK pathologist and S, a British writer. W had been the
pathologist on the Scotland Yard team that had been called in to investigate the murder of the
late Foreign Affairs Minister. The investigation had never been completed and it had not been
established how the deceased met his death. Though service of summons was effected in the UK
on the British Defendants, they neither entered appearance nor filed any defences. The two
Kenyan Defendants admitted liability and, on 12 July 2000, a consent judgment was entered
against them requiring them to pay the Plaintiff KShs 5 million each and to make an unqualified
apology for publishing the offending material. Default judgments were entered against the
remaining Defendants and the suits were now before the Court for assessment of damages. On
the Plaintiff‟s application, the suits were consolidated pursuant to Order XI, rule 2 of the Civil
Procedure Rules. Held: As liability was not at issue, the Court‟s only concern was the question of
damages payable to the plaintiff and whether or not he should be awarded exemplary damages.
The fact that the plaintiff had accepted payment of damages from the two Kenyan defendants did
not prevent him from proceeding with the suit against the remaining defendants. In awarding
damages for libel a court had to be guided by the principle that the damages must compensate the
plaintiff for the injury to his reputation and the hurt to his feelings. Such damages were known as
compensatory damages and were aimed at vindicating the plaintiff in public and consoling him
for the wrong done. Though the assessment of damages was a complex matter, the principles
governing the assessment of compensatory damages were: (i) the award must compensate the
plaintiff for pain and suffering caused to him by the publication; (ii) the award should vindicate
the plaintiff‟s reputation in the eyes of the public (iii) the whole conduct of both the plaintiff and
the defendant had to be considered from the time of publication to the time of judgment. The
damages would be aggravated if the defendant partook in malicious and insulting conduct with
such “aggravated” damages being aimed at compensating the plaintiff for additional injury going
beyond that which flowed from the words alone (iv) the court would consider any previous
damages recovered by the plaintiff in order to ensure that he was not compensated twice for the
same loss and (v) the court would consider the manner of the publication and the extent of
circulation. Applying these principles to the facts of the case, the Plaintiff was entitled to a sum
that would represent proper compensation and vindication for the serious injury to his reputation.
Where a defendant knows that publication is tortious, his conduct is calculated to make him
profit that may exceed the compensation payable to the plaintiff, and he nevertheless proceeds to
publish the words complained of, then a court will award exemplary damages. Though the award
of damages was not meant to enrich the plaintiff and a reasonable relation had to be maintained
between the wrong done and the damages awarded, this would not prevent the court from
making a high award in a proper case. The defendant‟s conduct after publication of the offending
words in this instance merited the award of exemplary damages. In the circumstances, the grave
nature of the libels perpetrated against the plaintiff merited the award of compensatory damages
in the sum of KShs 15 million and exemplary damages in a like amount of KShs 15 million. The
Kenyan Defendants would be liable for no more than KShs 10 million as per their settlement and
the First Defendant in the first action for no more than KShs 15 million, as exemplary damages
had not been claimed against it. The Defendants would also be restrained from selling and
circulating the book within the Court‟s jurisdiction.

Ajit Singh and others vs Harnam Singh [1967] 1 EA 547 (Court of Appeal at Nairobi)

About May 18, 1960, the President of the Sikh Community at Nakuru published a circular in the
Gurmukhi language defamatory of the respondent to leaders of the Sikh Community throughout
Kenya. In September, 1958, the respondent had been appointed by the president on the
recommendation of the second appellant at the request of one Dr. Jodh Singh to be principal of
the Sikh Girls School at Nakuru. On April 9, 1960, the respondent‟s services were terminated
and thereafter the president issued the defamatory circular. The circular, after setting out the
circumstances in which the plaintiff was appointed, continued: “It was little negligence on the
part of the committee that it did not make inquiries at Kisumu where this man had worked
previously. As a result of this man‟s employment, the damage which Sikh Girls School, Nakuru,
Education Committee, Sikh Temple Managing Committee and citizens of Nakuru in general,
have suffered defies description or we cannot put in words. So with these few words I wish to
remind you or alert you that you also should beware of such persons and do your best to protect
your established Institutions from such persons and at the same time take trouble to keep us
informed. In case you need more information, you can contact President Sikh Temple, Nakuru or
Manager, Sikh Girls School, at any time at the following address.” In an earlier action (C.S. No.
886 of 1960) the plaintiff had sued the president for libel and had been awarded Shs. 6,000/-
damages, and in assessing the damages the judge in that case took into account the innuendo that
the plaintiff had done something morally wrong, and also that there had been the wide circulation
of the libel throughout Kenya including republication of the circular by addressees of the circular
to other persons. The circular was sent by post to the second appellant care of his son the first
appellant, a watchmaker having a shop in River Road, Nairobi. At the shop the son, the first
appellant, handed the circular to his father, the second appellant. The father explained the
contents of the circular to his son who was instructed by his father to show it to Dr. Jodh Singh.
The next day the father brought Dr. Jodh Singh to the son‟s shop and there the father read the
circular to the doctor. After the father and the doctor left the shop the son displayed the circular
in the shop window to be read by anyone literate in the Gurmukhi language. The respondent
raised separate actions for libel against the father and the son and the suits were consolidated.
The trial court held that the father had published the circular to the son and to Dr. Jodh Singh (if
publication had been restricted to this the father would have been entitled to the defence of
qualified privilege) and that both the father and the son had published the circular to any passer-
by by the son displaying the circular in the window. On this latter ground of fact the court
rejected the defence of qualified privilege raised by the appellants. The court (in a single decree)
found that the circular was libellous of the respondent and ordered that the appellants pay the
respondent Shs. 6,000/- damages with interest and costs. The father appealed on the ground that
he was not responsible for the display of the circular in the shop window and therefore his part of
the publication to the son and to Dr. Jodh Singh was restricted and therefore privileged. Both
appellants appealed against the quantum of damages on the grounds that (a) the innuendo, viz.:
that the plaintiff had done something morally wrong was not proved; (b) republication of the
libel was virtually contemporaneous with the original publication in respect of which the
respondent had already been compensated in C.S. No. 886 of 1960. Held: Evidence was
sufficient to support the finding of fact that the father procured the display of the circular in the
shop window and therefore the father was not entitled (as he would probably otherwise have
been) to the defence of qualified privilege. As to damages: (a) the innuendo (proved in C.S. No.
886 of 1960) was not proved in this case; (b) compensation already received by the plaintiff in
C.S. No. 886 of 1960 was irrelevant in considering damages in this case; (c) in C.S. No. 886 of
1960 the judge had expressly excluded consideration of the effect of the publication by display in
the shop window when awarding damages. The circumstances in this case were different from
those in C.S. No. 886 of 1960. The award of Shs. 6,000/- damages in this case should be reduced
to Shs. 3,000/- based upon the republication by the appellants. In a consolidated suit for libel the
damages were correctly assessed as one sum but that sum should have been apportioned as well
as the costs between the individual defendants. Appeal allowed in part. Damages reduced.

Nagenda vs Editor of the Monitor and another [1990–1994] 1 EA 435 (Supreme Court of
Uganda at Mengo)

Land was leased to the appellant who defaulted in payment of rent after 3 years. Mr Kagumba,
the lessor through his lawyers then threatened to evict. He later entered the land and picked some
of the defendant‟s tea that was growing on the land. The appellant heard about this action and
rushed back with a gang of people who were armed with pangas. They did not find Mr Kagumba
but caught and tortured his employees who were still picking the tea. The respondents heard
about the incident and wrote an article about the dispute and the appellant‟s actions. The
appellant was a member of the Human Rights Commission at the time. The appellant in turn
sued the respondents for defamation. The respondents, while admitting the contents of their
publication, denied that they were false or malicious or defamatory. The trial Judge found that
the defence of justification had been established. Held: An apology in effect destroys the defence
of justification. Justification is the technical word for truth. If the words complained of tell the
truth, no apology can be offered or there would be no need for the apology. Even if a defence of
justification is not pleaded or made an issue a trial Judge can consider it. The law of libel is
concerned with the publication of disparaging or malicious falsehoods about a complainant. It is
a publication without justification or lawful excuse, which is calculated to injure the reputation
of another person by exposing him to hatred contempt or ridicule. Libel is really not concerned
with inadvertent omission in the report of a factual statement. The defence of justification affects
the substance of the matter and not mere details.

Figueredo vs Editor Sunday Nation and others; Sanghani vs Same; Trivedi vs Same [1968] 1
EA 501 (HCU)

The plaintiffs in all three cases were Ugandan Asians who claimed to have been defamed as a
result of publications in the defendant‟s newspaper. The article contained a passages stating that
there are about 25 Asians now getting „free board and lodging‟ in Uganda‟s biggest prison,
Luzira, recently convicted of forgery and conspiracy and all are non-citizens. They forged Congo
currency. It was common cause that the plaintiffs were convicted of conspiring together to forge
Rwanda Burundi 1,000 franc currency notes and the second plaintiff was additionally convicted
of possessing a plate for the forging of currency notes of that description. The defence conceded
that the statements were defamatory of the plaintiffs and the only issue to be resolved was the
defence of “fair comment”. Held: To succeed in a defence of fair comment the defendant must
show inter alia that each and every statement of fact in the words complained of is true. To say
that the plaintiffs had been convicted of or had committed forgery was not a fact truly stated. The
use of the word “rogue” amounted to more than mere abuse and there was no evidence to support
the statement as being true. “Acts of crime” inferred that crimes had in fact been committed and
there was no evidence that the plaintiffs had committed any crime. There was no proof that any
of the plaintiffs were “undesirable”. To say that the plaintiffs “this time forged Congo currency”
was not a true statement of fact. In the result, the plea of fair comment failed. Judgment for the
plaintiffs.

Dasani and others vs Uganda African Newspapers Ltd and another [1971] 1 EA 450 (HCU)

The plaintiffs were members of the Lint Marketing Board a statutory body consisting of not
more than nine members. The defendants published an article alleging that the Board had been
taking bribes and exploiting farmers. For the defendants it was argued that the words were not
capable in law of reasonably referring to individual members of the Board. Held: The Lint
Marketing Board would be reasonably understood to refer to the board members only and not to
the whole organisation. The words are reasonably capable of referring to all the individual
members of the Board.

EA Newspapers (Nation Series) Ltd vs Opondo and others [1974] 1 EA 32 (Court of Appeal at
Nairobi)

The respondents had been the six national office-bearers of an organisation and they were still
carrying out these functions at the time of the publication of an article by the appellant stating
that the Nairobi officials of the organisation had been sacked. On appeal the appellant argued
that the respondents had not been sufficiently identified as the persons referred to, that an
innuendo of identity should have been pleaded, that the words in their natural meaning could not
impute criminal offences, and that the finding of malice supporting an award of aggravated
damages could not be supported. Held: The respondents were performing the duties of office-
bearers. A reference to officials was to the office-bearers. A reference by office to six persons
must be regarded as a reference to each of them. The words were only mildly defamatory, no
legal innuendo having been pleaded or proved. The same principles apply to the question
whether there is malice aggravating damage as apply to the question whether there is malice
negativing a defence of qualified privilege. The appellant was not responsible for the malice of a
freelance journalist and the other findings of malice could not be supported.

I.S. Msangi vs Jumuiya Ya Wafanyakazi & Workers Development Corporation 1992 TLR 259
(CA) (Tanzania)

The appellant sued the respondents in the High Court for defamation and wrongful termination
of employment. The basis of his suit for defamation was that a defamatory statement relating to
him was published to persons not having corresponding interest and duty to receive the
publication. The defamatory statement was contained in a probe team report which instead of
being published to the general council of JUWATA which had ordered the probe was published
to Kamati ya Usimamizi ya Baraza Kuu (KUBK) and the board of directors of the Workers
Development Corporation (WDC) of which he was general manager. Held: Where a person
raises the defence of qualified privilege on the ground that he had a duty to make the offending
statement it must further be shown that the statement was made in good faith and that the person
to whom it was made had a corresponding interest and duty to receive it. The report containing
defamatory statements was ordered by the general council of the first respondent and was
expressly required to be submitted to that body. Publication of the report to members of KUBK
when they were not supposed to receive it was wrong.

Williamson diamonds Ltd and another vs Brown [1970] 1 EA 1 (Court of Appeal at Dar-es-
Salaam)

The respondent had been employed as Fire and Safety Officer at the appellant company‟s mines.
One of his duties was to inspect the plant and to advise on matters related to the prevention of
accidents. In a report he referred to what were called “boom head pulleys” and suggested that the
Mechanical Engineer should be consulted with the view of designing a suitable guard for these
pulleys. Some time in late August 1966 a company employee was injured whilst working at the
discharge end of a portable cross conveyor, and an enquiry was held into the accident by the
Inspector of Mines at which the respondent gave evidence, and referred to his July report.
Subsequently, the Inspector of Mines wrote to the General Manager of the appellant company
informing him that it had come out at the enquiry that the respondent had in his July report made
a recommendation “for the guarding of boomhead pulleys of conveyors”. He asked why this
recommendation had not been carried out, and went on to suggest that if this had been done there
might not have been an accident. In his reply, the General Manager stated that “the evidence
submitted by our Safety Officer [at the enquiry] was rather misleading because the accident . . .
did not take place at the head pulley of one of our six boom conveyors. It took place at the head
pulley of a temporary stacking belt”. The appellants regarded the term “boom head pulleys” as
only applied to the head pulley of a “boom conveyor”, while both the respondent and the
Inspector of Mines regarded the term as applied to the head pulley in both systems of conveyors.
The libel, it was alleged, was contained in the words: “Unfortunately the evidence submitted by
our Safety Officer was rather misleading.” The respondent pleaded that the said words meant by
way of innuendo that the respondent, when giving evidence upon oath in an enquiry into an
accident, stated something which to his knowledge was false or alternatively stated something
which he did not know to be true and that he intended to mislead the Inspector of Mines. Held:
The natural, plain and ordinary meaning of the words complained of was not, in the context as
used, defamatory; the respondent‟s evidence was, in fact, misleading. In considering the question
of malice, the court should enquire whether the publication was done in the reasonable and
necessary protection of the defendant; any defamatory statements, made by a person whose
character or conduct has been attacked, will be privileged provided they are published bona fide
and are fairly relevant to the accusation made; the defendant will be protected even though his
language should be violent or excessively strong, if, having regard to all the circumstances of the
case, he might have honest and reasonable grounds for believing that what he published was true
and necessary for the purpose of his indication though in fact it was not so. The onus is on the
plaintiff to establish malice. In this case, the respondent had failed to establish that the appellants
had not acted honestly for the purpose of protecting themselves; therefore, the finding of malice
could not be sustained.

Makori Wassaga vs Joshua Mwaikambo and Another 1987 TLR 88 (CA) (Tanzania)

The appellant was claiming damages against the respondents contending that the latter had
written and published libellous statements against him. The trial judge found that one of the
statements was defamatory but went on to hold that the occasion afforded the defendants the
defence of qualified privilege. The issue on appeal was whether the trial judge erred in so
holding. Held: To offset the defence of qualified privilege it is not sufficient that the statement in
question is consistent with the existence of malice, but must be inconsistent with bona fides and
honesty of purpose. Mere want of reasonable or probable cause is not conclusive to disrupt the
defence of qualified privilege because the law first requires that a privilege should be used
honestly and not that it should be used carefully.

Athumani Khalfani vs P.M. Jonathan 1983 TLR 6 (CA) (Tanzania)

The appellant appealed against the decision of the High Court which ordered him to pay
damages to the respondent for libel. The libel consisted of a communication to the Chief Justice
made by appellant alleging that the respondent was corrupt. The detailed facts of the case appear
in the judgment. Held: A person making a communication on a privileged occasion is not
restricted to the use of such language merely as is reasonably necessary to protect the interest or
discharge the duty which is the foundation of his privilege; but on the contrary he will be
protected even though his language should be violent or excessively strong; if having regard to
all the circumstances of the case he might have honestly and on reasonable grounds believed that
what he wrote or said was true and necessary for the purpose of his vindication, though in fact it
was not so. Malice is required where the communication is privileged. Malice does not exist
where a defendant honestly and reasonably believes in the truth of the communication.

Amos Jonathan vs J.S. Masuka and Others 1983 TLR 201 (HC) (Tanzania)

On 14/5/1974 the plaintiff filed a libel suit claiming damages to the amount of shs. 30,000/=. The
basis of the plaintiff's case was that the defendants had defamed his character by calling him a
thief. The facts which were based on an allegation that the plaintiff had defrauded his employer,
one of the defendants, were admitted. The only question was whether the defendants had any
defence. Held: In order to be availed of the defence of justification the defendants have to prove
that their accusation was true and the standard of proof is beyond reasonable doubt. Qualified
privilege covers the publication of defamatory matter by a person who has a legal, social and
moral duty to publish and the recipient has a legal, social and moral duty to receive the
publication.

Nyabagaya Mtani vs Nyakanyi Kabera 1983 TLR 332 (HC) (Tanzania)

The appellant had called the respondent a witch and the latter being aggrieved convened and
complained before a meeting of elders. In order to clear herself she went to a witch finder who
certified that she was clean. Thereafter she sued the appellant for two cows as damages and
expenses she incurred in travelling to the witch finder. The trial court awarded damages and
expenses as prayed. The appellant appealed to the District Court which set aside the damages but
affirmed the expenses. She appealed further to the High Court. Held: The Primary Court had
jurisdiction to try the case since an imputation of witchcraft is a known customary law tort of
defamation. Since the defamatory words were uttered before only the respondent there was no
publication; the repetition of the words to the elders was done by the respondent which did not
amount to publication by the appellant.

WSO Davies vs Mohanlal Karamshi Shah [1957] 1 EA 352 (Court of Appeal at Nairobi)

The appellant who at the time was a Deputy Registrar of the Supreme Court at Mombasa and is a
member of the English Bar brought an action in respect of libels published of him by the
respondent which contained serious allegations of dishonesty, wilful misconduct in the course of
his official duties, and professional misconduct. They were contained in three documents, a letter
addressed to the Chief Justice of Kenya, with copies to the Attorney-General and Mr. Justice
Macduff, then Judge at Mombasa, a letter addressed to the Secretary of State for the Colonies,
with copies to a firm of London solicitors and the Chief Justice of Kenya, and a petition
addressed to the Prime Minister, with copies to the Secretary of State, “The Members of
Parliament, House of Commons,” and the Chief Justice of Kenya. Held: When some publication
has been sufficiently proved in a case of libel the court should have regard to probabilities as
regards the further extent of publication. If a carbon copy of a letter reaches the person indicated
as one who should receive it, there is reasonable presumption that the “top” and other carbons
were sent as was apparently intended, and were duly received. Therefore, as regards the
Secretary of State and his staff the court below took an erroneous view as regards the extent of
publication. Because a libel is sufficiently outrageous so as not to be believed is no ground for
depriving the person libelled of appropriate damages.

Muleya vs Common Market for Eastern and Southern Africa (3) [2004] 1 EA 173 (COMESA
Court of Justice at Khartoum Sudan)

The Applicant filed an application for reinstatement at the COMESA Secretariat. In a reasoned
ruling, the COMESA Court refused to order reinstatement. The COMESA Secretariat, the
Respondent, issued a press statement of the said court decision. The said press release was not
objective as it only highlighted the findings of the Court which were favourable to the
Secretariat, and the said findings were misconstrued. The Secretariat stated that the Applicant‟s
services had been terminated “on the basis of poor performance”. The Applicant then filed the
current reference claiming that the press release by the Respondent was defamatory. Held: The
words complained of clearly imputed that it was the Court‟s decision that it could not reinstate
the Applicant as Director on the basis of poor performance. This imputation was wrong, and the
plea of justification could not be upheld. The publication of the defamatory matter was
worldwide, since it was carried both in print and electronic media. There was evidence that the
Applicant had subsequently been unable to obtain a job in the private sector, although he
subsequently obtained a prestigious job in the public sector. A fair estimate of damages would be
US$ 2 000. In the circumstances of this particular case, it would not be necessary to grant
injunctive relief against the further publication of the defamatory words. Reference granted.

Patel vs Dhanji and others [1975] 1 EA 7 (Court of Appeal at Nairobi)

The appellant and the respondents are members of the Indian Cutch Leva Patel Community, with
between 2,500 and 3,000 members. The members are mainly engaged in plumbing, building and
motor spare parts businesses. The members extend monthly credit terms to one another. The
Samaj is one of the associations or “sects” or “religions” composed of members of the Cutch
Leva Patel Community. The appellant had been an office bearer of the Samaj prior to the
incident. The appellant had been agitating for the account books of the Samaj to be available for
public examination, and this demand was resisted by the respondent office bearers who
apparently belonged to the majority party in the Samaj. At the annual general meeting an article
published by the secretary of the Adarsh Sang attacking the Samaj office bearers was read out.
The writer of the article was identified as the appellant. Thereafter the respondents declared that
the appellant did not belong to their community at all (meaning Shree Cutch Leva Patel
Community) and had no right to be present in the Community Hall and he should be thrown out
of the Hall by force and never allowed to enter the same again. They meant thereby that the
plaintiff has been guilty of dishonest and dishonourable conduct and that he should be ostracised
from the Community and was unfit to associate with other members of the Community. The
appellant appealed, contending that the words were capable of a defamatory meaning. Held: A
plaintiff who fails to prove an innuendo may rely on the words being defamatory in their natural
and ordinary meaning. In the circumstances of the case the words were capable of a defamatory
meaning. The general rule is that the judge refuses to rule on a submission of no case to answer
unless the party making the submission elects to call no evidence. The only two exceptions at
present recognised in defamation cases are submissions of no evidence of malice, and of words
not actionable without proof of special damage.

East African Standard vs Gitau [1970] 1 EA 678 (Court of Appeal at Nairobi)

The appellant published in a newspaper the photograph of a motor car which had been in an
accident and which was unidentifiable over an incorrect statement that the driver was nowhere to
be seen, no one had reported the accident and no one had been admitted to hospital. The
respondent sued for damages for libel and produced as witnesses persons who had seen the car
and know it to be his. The judge found the statement defamatory and awarded Shs. 24,000/-
damages. The appellant appealed contending that the statement was not capable of bearing a
defamatory meaning and was not defamatory and that the damages awarded were excessive.
Held: The statement could be defamatory even though only persons with special knowledge of
the circumstances could connect it with the respondent. Where the allegation made could not
constitute a criminal offence, the innuendo that the respondent had been guilty of a crime cannot
be sustained. The general impression to be created in the minds of right thinking persons must be
the test and not a too close analysis of the words used. The extent of the defamation was slight
and the damages awarded were excessive.

Registered Trustees of Catholic Archdiocese of Nyeri and another vs Standard Ltd and others
[2003] 1 EA 257 (HCK) High Court of Kenya at Nyeri

The Plaintiffs brought two separate suits for defamation against the Defendant newspapers in
relation to various articles published by the newspapers alleging that the Second Plaintiff, a
catholic priest, had defiled a minor in his church. The two suits were consolidated and heard
together. The First Plaintiff‟s cause of action was based on the allegation that it had condoned
the defilement of the minor by the priest. The priest had been charged with the defilement of the
minor but was acquitted for lack of evidence. The Defendants relied on the defences of privilege
and fair comment arguing that under the Defamation Act (Chapter 36) the truth of all the matters
alleged need not be proved. They also raised preliminary points of law during the closing
submissions that the plaint as drawn was a joint claim and since it was a libel claim, there could
only be one judgment and verdict in favour of the Plaintiffs. The other point raised was that the
First Plaintiff could not maintain a claim for defamation as it lacked sufficient personality. Held:
Preliminary points are to be raised at the beginning of the hearing and not at the end of the
hearing. Secondly, the issue of capacity to sue goes to the very root of the case and must be
pleaded. The defence of privilege could not avail the Defendants since the articles complained of
did not refer to the proceedings of the court case. The defence of fair comment applies to
comment but not to imputation of fact. It is something which is or can reasonably be inferred to
be a deduction, inference, conclusion, criticism, remark or observation. The Defendants
published the defamatory statements of the Plaintiff under the guise it was the father of the minor
who told them of the defilement, there was no proof of defilement and the allegations were false.
Repetition of the allegations by the Defendants made them liable. The Defendants could not
avail themselves of the defence of fair comment because they failed to prove that any of the
allegations made against the Second Plaintiff were true. (Section 15 of the Defamation Act).

Egbuna vs Amalgamated Press of Nig. Ltd (1967) ALL NLR 27 (Nigeria)

Held: In establishing the standard of the right thinking members of the society court said it
usually rules out on the one hand, persons who are so lax or so cynical that they would think
none the worse of a man whatever was imputed to him, and on other hand those who are so
censorious as to regard even trivial accusations, if they were true as lowering another‟s
reputation, or who are so haughty as to infer the worst meaning from any ambiguous statement
the ordinary citizen is neither unusually suspicious nor usually naïve and he does not always
interpret the meaning of words as would a lawyer, for he is not inhibited by a knowledge of the
rules of construction.

Sketch Publishing Co. Ltd vs Ajagbe Mokeferi (1989) I NWLR pt 100, pg. 678 SC (Nigeria)

Held: In libel, the defamatory statement remains in a permanent form long after publication and
may be referred to by any persons in future and cause damage to the person or his family, except
the materials are withdrawn from circulation or destroyed by the defendant at the order of the
court.

Yesufu vs Gbadamosi (1993) 6 NWLR pt 299, pg 363 C.A (Nigeria)

Held: In slander the alleged defamatory words relied upon must be pleaded and proved in
evidence.

Bakare vs Ishola (1959) WNLR 106 (Nigeria)

Held: As a general rule, mere vulgar abuse or insult is not slander and thus not defamation,
therefore they are not actionable in slander.

Ibeanu vs Uba (1972) 2 ECSLR 194 at 195 (Nigeria)

Held: Where a vulgar abuse alleges a specific act or wrongdoing, or accuses that the plaintiff
committed a specific crime, then the statement will not be regarded as a mere slander, as the
statement may lead to the plaintiff being shunned by the public or arrested by the police. The
court will hold such vulgar abuse as defamatory whether or not it was said in an atmosphere of
jokes or in the heat of anger.

Okolo vs Midwest Newspaper Corporation (1974) 2 CC HCJ 203 at pg. 205 (Nigeria)

Held: The words complained of by the plaintiff must be defamatory and it is for the judge to
decide whether the words complained of are reasonably capable of being defamatory.

Akintola vs Anyiam (1961) I ALL NLR 529

Held: Defamation by an innuendo is defamation by the use of word which are not defamatory in
actual sense of the case or in themselves. An innuendo is an indirect defamation by the use of
words with a hidden or secondary meaning.

Dalumo vs The Sketch Publishing Co. Ltd (1972) LL NLR 567 at pg 568

Held: It was held that a libel published about the top officials of Nigeria Airways which was a
small and ascertainable class of persons sufficiently referred to the plaintiff who came within it.
United Africa Press Ltd vs Zaverchand K Shah [1964] 1 EA 336 (Court of Appeal at Nairobi)

The respondent claimed damages for libel against the appellant company as proprietors of a
newspaper. The trial judge in giving judgment for the respondent held that the allegation in the
defence that the facts complained of were true in substance and fact had not been established
with the degree of certainty which the law required and further held that even if the facts were
required to be established on the mere balance of probabilities the evidence was inadequate. On
appeal. Held: In the instant case a higher than normal standard of proof was required to
substantiate the plea of justification. Even if the proper standard ought not to be that of a criminal
trial, it was a high one and the trial judge had not fallen into any error of substance in his
approach.

Oraro vs Mbajah [1990–1994] 1 EA 500 (HCK) High Court of Kenya at Nairobi

The plaintiff is an advocate of the High Court. He claimed that the defendant published
information alleging that he was involved in the murder of the late Dr Robert Ouko, a former
Minister for Foreign Affairs and International Co-operation and that he was unscrupulous and
not fit to represent the Ouko family in the judicial inquiry into his death that followed. The
defendant, in his statement of defence, claimed that his communication was contained in an
affidavit intended for his advocate in the said judicial inquiry and that it was therefore privileged.
The defendant also, nonetheless, pleaded truth and justification. Held: The burden of proof that
the words complained of were brought to the actual knowledge of a third person is on the
plaintiff but it is not necessary for the plaintiff in every case to prove that directly. If he proves
facts from which it can be reasonably be inferred that the words were brought to the notice of
some third person, he will establish a prima facie case. When publication is through letter or
other document by post to a particular person, the writer is not responsible for its publication to
other persons. But if the original publisher of defamatory words authorises or intends their
republication, he is clearly liable. Also where having regard to the circumstances the repetition of
the defamatory words might be reasonably be anticipated to follow, the original publisher is
liable. Where a defence of absolute privilege has been set up, it is for the defendant to allege and
prove all such facts as are necessary to bring the words complained of within the privilege.
Absolute privilege will extend between solicitor and his client on the subject which the client has
retained the solicitor for provided nothing is said which is outside what is relevant to the matter.
Since the defendant‟s affidavit was not admitted in the judicial inquiry the defence of privilege
will not apply to it.

Daily Nation vs Mukundi and another [1975] 1 EA 311 (Court of Appeal at Mombasa)

The second respondent forwarded to the appellant newspaper for publication a notice stating that
his customers should not deal with the first respondent, formerly his salesman, who had escaped
after having been found untrustworthy with money. The second respondent published the notice.
On the first respondent‟s libel action, the High Court held that the publication was libellous of
him, that the plea of justification failed, that the publication was on an occasion of qualified
privilege, but that this protection was destroyed by malice. Damages of Shs. 12,000/- were
awarded. The appellant appealed contending that as there had been no malice on its part the
qualified privilege protected it, that the damages awarded were excessive, and that it should have
been awarded indemnity against the second respondent. The first respondent contended that there
was no community of interest between the newspaper and its readers and therefore no qualified
privilege. Held: There was no reciprocity of interest between the newspaper and its readers and
therefore no qualified privilege. The damages were high but not so high that the court would
interfere. The newspaper was not entitled to contribution from the author of the notice because:

(a) the newspaper was an independent contractor under no compulsion to publish and in such
circumstances always publishes at its own risk subject only to any contract to the
contrary;
(b) the newspaper and the author were independent tortfeasors.