MEDIA LAW

A media handbook for journalists and film students

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INTRODUCTION TO MEDIA LAW
What is law?
 Law is the system of rules that a particular country or community
recognizes as regulating the actions of its members and may enforce by
imposing penalties. How are laws made by the Parliament of Kenya?

 Law is a system of rules that a society sets to maintain order and prevent
harm to persons and property.
 A body of rules of conduct of binding legal force and effect, prescribed,
recognized, and enforced by controlling authority.

In democratic societies, like ours, laws are written by legislators but have to be
enforced through a set of institutions; the police supported by courts of law and
prison system.

The Constitution is the supreme law in Kenya.

All laws must uphold the Constitution and any law that contradicts the constitution is
null and void.
Article 2(1) of Constitution of Kenya 2010 says: “This Constitution is the
supreme law of the Republic and binds all person and all state organs at both
levels of government”.
Article 2(4) adds that : “Any law, including customary law that is inconsistent
with this constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this constitution is invalid.”
Law permeates every part of human life. For example, there are laws that govern
property, crime, governance, international relations, family, succession, marriage,
education, birth, death, environment etc.
Law can be broadly categorized as either common or civil. Common law originated
from the United Kingdom within Europe. It was originally not written down in volume.
It is also known as judge-made law.
It is the ancient law of England based upon societal customs as recognized and
enforced by the judgments and decrees of the courts.

The principles and rules of action, embodied in case law rather than
legislative enactments, applicable to the government and protection of
persons and property that derive their authority from the community customs and
traditions that evolved over the centuries as interpreted by judicial tribunals.

The common law system traces its roots to the medieval idea that the law as handed down
from the king's courts represented the common custom of the people. It evolved chiefly
from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer,
the King's Bench, and the Common Pleas.

These courts eventually assumed jurisdiction over disputes previously decided by local or
manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose
jurisdiction was limited to specific geographic or subject matter areas.

Equity courts, which were instituted to provide relief to litigants in cases where common
law relief was unavailable, also merged with common law courts. This consolidation of
jurisdiction over most legal disputes into several courts was the framework for the
modern Anglo-American judicial system.

Early common law procedure was governed by a complex system of Pleading, under
which only the offences specified in authorized writs could be litigated. Complainants
were required to satisfy all the specifications of a writ before they were allowed access to
a common law court.

This system was replaced in England and in the United States during the mid-1800s. A
streamlined, simplified form of pleading, known as Code Pleadings or notice pleading,
was instituted. Code pleading requires only a plain, factual statement of the dispute by the
parties and leaves the determination of issues to the court.

Common law courts base their decisions on prior judicial pronouncements rather than on
legislative enactments. Where a statute governs the dispute, judicial interpretation of that
statute determines how the law applies.
Common law judges rely on their predecessors' decisions of actual disputes, rather than
on abstract codes or texts, to guide them in applying the law. Common law judges find
the grounds for their decisions in law reports, which contain decisions of past disputes.

Doctrine of judicial precedence or Stare Decisis

Stare decisis is Latin phrase which means ‘stand by the thing decided’. Law
characteristically faces backward. Unlike most of policy-making, which are concerned
with a proposed policy’s future consequences, legal decision making is pre-occupied
looking over its shoulders.

Frequently in law, but less so elsewhere, it is not enough that a decision produces
desirable results in future; the decision must also follow from or at least be consistent
with previous decisions on similar questions.

By ordinarily requiring that legal decisions follow precedent, the law is committed to the
view that it is often better for a decision to accord with precedent than to be right, and
that it is frequently more important for a decision to be consistent with precedent than to
have the best consequences.

Under the doctrine of Stare Decisis, common law judges are obliged to adhere to
previously decided cases, or precedents, where the facts are substantially the same. The
doctrine requires that once a decision of a judge has been given on a point of law, that
decision binds both the judge and the subordinate courts in similar subsequent cases.

Precedent arises as follows: one is vertical precedent. Lower courts are expected to obey
previous decisions of higher courts within their jurisdiction. This means the decision of
the Supreme Court, Court of Appeal, High Court, have precedent value while the
magistrate and Kadhis courts do not have.

In addition to being obliged to follow the decisions of courts above them in judicial
hierarchy, courts are also, although less obviously and sometimes more controversially,
expected to follow their own earlier decisions. This is horizontal precedent.

Because common law decisions deal with everyday situations as they occur, social
changes, inventions, and discoveries make it necessary for judges sometimes to look
outside reported decisions for guidance in a CASE OF FIRST IMPRESSION (previously
undetermined legal issue).
The common law system allows judges to look to other jurisdictions or to draw upon past
or present judicial experience for analogies to help in making a decision. This flexibility
allows common law to deal with changes that lead to unanticipated controversies. At the
same time, stare decisis provides certainty, uniformity, and predictability and makes for a
stable legal environment.

Advantages of the Stare Decisis principle include the following:

 Ensures previous court decisions are left undisturbed and
 Hence serve as form of reference;

 Provides a form of consistency in adjudication of disputes

 Gives certainty and predictability to dispute resolutions

 Ensures that disputes are adjudicated in similar manner thus guaranteeing

impartiality of judge/judgment

 Saves times and unnecessary litigation

Example: In Dodhia v Grindlays Bank Ltd (1970), the Court of Appeal refused to
overrule a decision by the Privy Council given in a case of contract because such
overruling would create uncertainty in commercial transactions which in turn would
adversely affect the business community.

Under a common-law system, disputes are settled through an adversarial exchange of

arguments and evidence. Both parties present their cases before a neutral fact finder,
either a judge or a jury who evaluates the evidence, applies the appropriate law to the
facts, and renders a judgment in favour of one of the parties. Following the decision,
either party may appeal the decision to a higher court.

Appellate courts in a common-law system may review only findings of law, not
determinations of fact. These include the High court, court of appeal and Supreme Court.

Under common law, all citizens, including the highest-ranking officials of the
government, are subject to the same set of laws, and the exercise of government power is
limited by those laws. The judiciary may review legislation, but only to determine
whether it conforms to constitutional requirements.
Civil Law
The civil law, also known as European Continental law, or Romano-Germanic law, traces
its origin to Roman Empire. It is the principal legal system in the world that was inspired
by Roman law and derived from Code of Justinian in addition to other sources such as
Germanic, Ecclesiastical, feudal, and local practices; as well as doctrinal strains like
natural law, codification, and legislative positivism.
The purpose of civil law is to provide an accessible and written collection of laws that
judges must follow.
This legal system is the most widespread and effective in about 150 countries. Some
countries have not resorted to the method of codifying law, but they have retained
elements of Roman legal construction, "as a written reason", to be considered associated
to the civil tradition.
On the other hand, there are countries in which Roman influence was feebler but whose
law, codified or not, rests on the concept of legislated law that in many ways resembles
the systems of countries with a "pure" civil tradition.
In civil law, the authoritative sources are legislation and codifications in constitutions or
statutes passed by government, and custom. In some countries, legal systems are
established around one or various law codes that set the most important principles to
conduct the law. For example, the most famous is the French Civil Code, even though the
German Bürgerliches Gesetzbuch and the Swiss Civil Code are considered landmark
events in legal history.
Civil law deals with the disputes between individuals, organizations, or between the two,
in which compensation is awarded to the victim.

Civil law and Criminal Law

These are two broad and separate entities of law with separate sets of laws and
punishments.

According to William Geldart, Introduction to English Law 146 (D.C.M. Yardley ed., 9th
ed. 1984), "The difference between civil law and criminal law turns on the difference
between two different objects which law seeks to pursue - redress or punishment. The
object of civil law is the redress of wrongs by compelling compensation or restitution: the
wrongdoer is not punished; he only suffers so much harm as is necessary to make good
the wrong he has done. The person who has suffered gets a definite benefit from the law,
or at least he avoids a loss. On the other hand, in the case of crimes, the main object of
the law is to punish the wrongdoer; to give him and others a strong inducement not to
commit same or similar crimes, to reform him if possible and perhaps to satisfy the public
sense that wrongdoing ought to meet with retribution.”

Examples of criminal law include cases of burglary, assault, battery and cases of murder.

Examples where civil law applies include cases of negligence or nuisance.

Functions of law
Before we look at the functions of law, we should seek to understand characteristics of
law. Any law must meet certain minimum characteristics:
 Non-retrospective. Its prospective and hence must be set forth in advance
 Must be made public
 Territorial operation. All national/municipal laws are jurisdictional. They are
bound within the territory
 Must be general
 Must be stable
 Must be certain and finally,
 it must be applied to everyone according to its term
Absent these conditions and there will be no rule of law.

1. Law imposes legal restraints on state officials in two ways: by requiring compliance
with existing law and by imposing legal limits on law making power.
State officials must abide by valid positive laws in force at the time of any given action.
Further government actions must have authorization without which the action is
improper. No government action may contravene a legal prohibition or restriction.
Kenya’s 2010 Constitution makes reference to this position in Articles 1-3. If government
officials wish to pursue a course of action that violates existing laws, the law must be
changed in accordance with ordinary legal procedures before the course of action can be
taken.
Law imposes restrictions on the law making power of the government. That is certain
prohibited actions cannot be legally allowed, even by a legitimate law-making authority.

2. Law maintains orders and coordinates behavior and transaction among citizens. People
must behave in a way that does not breach legal rules. Transgression of legal rules or
social disruptions whether criminal or civil will provoke a response from legal
institutions charged with enforcing legal requirements and resolving disputes consistent
with applicable legal norms.
3. It enhances certainty, predictability and security in two ways: between citizens and
government (vertical) and secondly among citizens (horizontal). Citizens benefit by being
aware in advance of government’s likely response to their actions or omissions. Anything
not prohibited by law can be done by the citizens without fear.
4. It restricts discretion of government officials, reducing willfulness and arbitrariness.
The law restricts government official from acting or being unduly influenced in their
actions by inappropriate considerations; prejudice, whim, arbitrariness, passions, ill will
or foul disposition or any factor that warps human decision making and actions.
To achieve this function and benefit, the law requires government officials to consult and
conform to the law before and during action. Secondly, legal rules provide publicly
available requirements and standards that can be used to hold government officials
accountable during and after their actions.
5. Law ensures that peaceful social order is maintained. This condition is marked by
absence of routine violence and by presence of a substantial degree of physical security.
6. Certainty, predictability and security facilitate economic development. In market-based
economic system such as ours, businessmen can better predict in advance the anticipated
costs and benefits, which enable them to make efficient decisions. The protection of
property and persons conferred by legal rules offers an assurance that the fruits of one’s
labour will be protected from expropriation by others.
This security frees individuals to allocate bulk of their efforts to additional productive
activity, and to enjoying its benefits, rather than expending time and effort protecting
existing efforts.
7. Law ensures that rules are applied equally to everyone according to their terms. No one
should be unduly favoured or ill-treated by legal officials. But this does not prohibit the
law from drawing distinctions among people or groups, as occurs with laws that treat
men and women differently or that imposes graduated tax rates; it only requires that the
law be applied in accordance with its term, no matter who it is applied to (president,
celeb, messenger, vagabond etc).

CLASSIFICATION OF LAW
Law is classified into:
 International law
 Municipal law/ domestic law or national law of a country

International law governs relationship between different states. It is further divided into;
 Public international law
 Private international law
Public international law governs relationship between different states. The subject matter
of these laws are states themselves and not individuals. The legal instruments for this law
are: treaties, conventions and international customary law.
There are no international prisons where convicts for public international law can be
sentenced. Compliance with PIL is enforced through sanctions like embargoes. The UN
International Court of Justice is concerned with adjudication of PIL.

Private international law governs relationship between individuals where there is a

foreign element. For example, a Kenyan and Ugandan having a contract in south Sudan;
in case of a dispute between them, PIL will enable the two parties to choose the court and
the law to apply or govern their relationship or dispute.

Municipal Law domestic law or national law of a country

This is the law that obtains within a particular jurisdiction. It is also known as domestic
law or national law of a country. It does not operate beyond the national boundaries of a
particular country. It is further divided into private and public law.
Private law governs the relationship between individuals. The state only comes in to
provide an avenue such as the law courts where the individual disputes are adjudicated.
Examples include: law of tort, law of contract, law of succession, law of marriage etc.
Public law governs relationship between the state and individuals. They include
constitutional law, criminal law and public administrative law.

SOURCES OF LAW
They are contained in the Judicature Act CAP 8 Laws of Kenya. They are the following:

1. The Constitution
A constitution is a set of rules that are foundational to the country, institution or
organisation to which they relate. This is the supreme law of the land.
The Constitution of Kenya, promulgated in 2010, sets out the foundational rules for the
Republic of Kenya. These are the rules upon which the entire country operates. The
Constitution contains the underlying principles and values of the laws of Kenya.
A key provision is Article 1, which gives sovereign power to the people of Kenya, and
commits to it being exercised only in accordance with the Constitution. That power is
delegated to the following state organs:
a. Parliament and the legislative assemblies in the county governments
b. The national executive and the executive structures in the county governments
c. The judiciary and independent tribunals.
Sovereign power is exercised at national and county levels. Key constitutional provisions
are articles 4(1) and 4(2), which state that ‘Kenya is a sovereign Republic’, and ‘Kenya
shall be a multi-party democratic State founded on the national values and principles of
governance as referred to in article 10’.
Definition of constitutional supremacy Constitutional supremacy means that the
constitution takes precedence over all other law in a particular country, for example,
legislation or case law. It is important to ensure that a constitution has legal supremacy: if
a government passes a law that violates the constitution – iss not in accordance with or
conflicted with a constitutional provision – such law could be challenged in a court of
law and could be overturned on the ground that it is ‘unconstitutional’.
The Constitution of Kenya makes provision for constitutional supremacy. Article 2(1)
states that ‘[t]his Constitution is the supreme law of the Republic and binds all persons
and all State organs at both levels of government’.
Article 2(3) specifies that the validity or legality of the Constitution is not subject to
challenge by or before any court or other state organ. Further, article 2(4) states that
‘[a]ny law, including customary law that is inconsistent with the Constitution is void to
the extent of the inconsistency, and any act or omission in contravention of this
Constitution is invalid’.
It adheres to the doctrine of supremacy. Article 2 (1) provides thus: “This Constitution is
the supreme law of the Republic and binds all persons and all state organs at both levels
of government.”
In Article 2 (4) it adds: “Any law, including customary law that is inconsistent with this
constitution is void to the extent of the inconsistency, and any act or omission in
contravention of this constitution is invalid.”

2. All written laws

These include;
 Laws passed by parliament- sometimes known as statutes or legislations. They are
the major sources of law in Kenya. They have the force of law throughout the
country and they therefore affect all members of the society. These laws are made
by Members of Parliament: Parliament includes both the National Assembly and
 the Senate. Courts interpret the provisions of any Act of Parliament if they are
called into question.
Statutes regulate conduct between the state and individual members of society.
Once a Bill has gone through the third stage in Parliament and has received the
assent of the president, it becomes a law. But not all provisions of the Act of
parliament become operative laws; some provisions are declared operative by a
particular officer or authority on a given date;
 Some special Acts of UK Parliament
 Some Special Acts of Indian Parliament
 Subsidiary legislations or delegated legislation. Delegated legislation takes the
form of orders, rules and regulations which are made by devolved authorities,
Cabinet secretaries, state departments, and statutory corporations. These bodies
make rules pursuant to the enabling Act of Parliament. The justification for
delegated legislation is that Parliament does not have the time and resources to
attend and legislate for small matters in detail, or in emergency situation such as
the outbreak of disaster.

3. Substance of common law, doctrines of equity, statutes of general applications in

force in England on 12/8/1897
They are also known as borrowed laws and 12/8/1897 is the reception date. Any
amendment to the law in England does not amend the law in Kenya.
The Statutes of General application include Acts of the United Kingdom Parliament. On
the other hand, the Substance of common law, doctrines of equity consist of the
judgments of the English superior courts. These laws are applicable in Kenya so long as
the circumstances of Kenya and its inhabitants permit and so long as they are not
inconsistent with any written law.
In Kenya, the courts administer both the common law and the doctrines of equity
simultaneously where necessary.

4. African Customary Law

These are laws according to different tribes that make population of Kenya. These laws
apply where the dispute is of civil/personal nature and not criminal. It is applicable where
one or both parties are subject to it and as long as the law is not repugnant to justice and
morality of the civilized society and not in conflict with any written law.

5. Islamic law
These are laws according to Prophet Mohammed and they govern people who profess
Islamic faith. These laws apply where the dispute is of civil/personal nature and not
criminal. It is applicable where one or both parties are subject to it and as long as the law
is not repugnant to justice and morality of the civilized society and not in conflict with
any written law.
6. International Treaties and Conventions
A treaty is an international agreement concluded between states in written form and
governed by international law. A treaty may also be defined as an instrument between
two or more states that is intended to give rise to binding obligations. One main
characteristic is that they are binding on member states. Treaty may be bilateral or
multilateral. The Kenyan Constitution provides that any treaty or convention ratified by
Kenya forms part of the law of Kenya – article 2(6).
A lot of telecommunication, human rights, media, environmental, trade, dispute
arbitration, labour laws and regulations among others are contained in treaties and
conventions.

7. Rules of International Customary Law

Arise where there is general recognition among states that certain practices and norms of
behavior are obligatory. Rules of international customary law arise where it can be
established that they have been accepted, practiced consistently and uniformly among
states. A good example would be the norm of no harm rule. States have responsibility to
ensure that activities within the jurisdiction of control do not cause damage to the
environment of other states. Another example is the rule that a state is the sovereign
within its borders.

8. Judgments of the courts or judicial precedent

A court's decision is binding authority for similar cases decided by the same court or by
lower courts within the same jurisdiction. The decision is not binding on brother court of
equal ranking or courts of higher ranking within that jurisdiction or in other jurisdictions,
but it may be considered as a persuasive authority. This means that the decision of the
Supreme Court, Court of Appeal, High Court have precedent value while the magistrate
and Kadhis courts do not have.
The decisions of the superior courts of records – the Supreme Court, the Court of Appeal
and the High Court, are reported in the law reports such as Kenya Law Reports, East
African Law Reports and the Eastern African Law Reports. They are also found in
libraries and court registries (for those decisions that are not reported). There are also
English law reports notably All England Law Reports.

9. Academic journals or documents authored by academicians in their respective field

10. Textbooks of authority

These fall into two categories; those that deal with the ways of life of a community,
and those written on legal matters only. Facing Mt Kenya by the late Mzee Jomo
Kenyatta may be regarded as a book of authority on Kikuyu customs and traditions
and hence fall in the first category.
Books in second category include Criminal Procedure in Uganda and Kenya (D.
Brown), Principles of Injunctions (R Kuloba) and Constitutional Development (Prof
JB Ojwang). These books provide reference material and may be resorted to as such.
The opinion expressed in books may not be binding on the court but can be of
persuasive value depending on the status of the author.

THE LAW OF TORTS

There is no precise definition of the term, tort. Generally, it’s a wrongful act, other than a
breach of contract, that injures another and for which the law permits a civil (non-
criminal) action to be brought.
Black’s Law Dictionary, 6thEdn defines a tort as “a private or a civil wrong or injury,
including actions for bad faith, breach of contract, for which the court will provide a
remedy in the form of an action for damages.”
Relief may be obtained in the form of damage or an injunction. The term derives from
Latin tortum, meaning “something twisted, wrong, or crooked.” Assault, defamation,
malpractice, negligence, nuisance, product liability, property damage and trespass are all
(apart from their potentially criminal and contractual aspects) torts.
According to Sir F Pollock, a tort is “an act which causes harm to a determinate person,
whether intentionally or not, not being a breach of a duty arising out of a personal
relation or contract, and which is either contrary to law, or an omission of a specific legal
duty, or a violation of an absolute right.”
Clark and Lindsell define tort as a wrong independent of a contract, for which appropriate
remedy is a common law action.
But Salmond observes that “a tort is a civil wrong for which remedy is an action for
unliquidated damages and which is not exclusively the breach of a trust or the breach of
other mere equitable obligations.”

Tort recognizes damages in the eye of the law; legal damages. There are instances where
a wrong is done to a person and it does not cause him actual legal damages. In that
instance, action in tort cannot be maintained.
It is a legal wrong committed upon the person or property independent of contract. It may
be;
 A direct invasion of some legal right of an individual;
 The breach of some public duty by which special damage accrues to the
individual;
 The violation of some private obligation by which like damage accrues
to the individual.

Tort can also be in relation to breach of legal duty or infringement of a legal right.
According to Winfield tortuous liability arises from the breach of a duty primarily fixed
by law. This duty is towards persons generally and its breach is redressable by an action
for unliquidated damages.
According to this definition, before a person can be held responsible in tort, the following
conditions must be fulfilled:
a. There should be breach of duty
b. That duty should be primarily fixed by law
c. That duty should be towards persons generally
d. Remedy for breach of aforesaid duty should be available in the form of unliquidated
damages.
In conclusion, a tort may be defined as a wrong consisting of a violation of a right
recognised and enforced by the law for which the appropriate remedy is an action for
unliquidated damages. These are damages whose quantum or assessment is left to a court
for the determination at its discretion. On the other hand, liquidated are fixed by parties
or plaintiff and defendant.
A person who commits a tort is called a tortfeasor. Where two or more persons commit a
tort, they are known as joint tortfeasors. They may be sued jointly or any one of them
may be sued for the whole of the damage.
In case of the joint tortfeasor, there is a right of contribution under which the court may
apportion the damages between them in such a way, having regard to their respective
degrees of blame.

FUNCTIONS OF THE LAW OF TORTS

a) The primary function of the law of torts is to compensate persons injured by the civil
wrongs of others, by compelling the tortfeasor to pay for the damages occasioned by his
tort.
b) It prevents continuance or repetition of harm. Where the injury complained of is of
continuous nature or likely to be repeated by the tortfeasor, the injured party may be
granted an injunction to prevent its continuance or repetition, for example, in cases of
trespass to land.
c) It determines rights between parties to a dispute. A party to a dispute may bring an
action for a declaration of his rights; and once the court makes a declaration, the rights of
the parties are determined.
d) It protects certain rights recognised by law. There are certain rights which every
individual is entitled and which are recognised by law. These rights are protected by the
law of torts e.g. a person’s reputation or right to a good name is protected by the law
which imposes a duty of care on every other person.
e) Finally, it restores property to its rightful owner. Where property is wrongfully taken
away from its rightful owner or otherwise dealt with contrary to his rights he may seek
restitution of the property or its value since the wrongful act amounts to the tort of
trespass to goods or land.

Nature of tortuous liability

Tort is a civil wrong which is usually remedied by an award of unliquidated damages.
Prof P.H Winfield asserts that “tortuous liability arises from the breach of a duty
primarily fixed by law; such duty is towards persons generally, and its breach is
redressable by an action for unliquidated damages”.
Every person is under a duty to compensate for his wrongful acts which have resulted in
injury to another person. It is this duty to compensate that determines his liability in tort.
Generally, the plaintiff must prove that he has suffered harm and there has in
consequence from violation of his legal right. Some civil wrongs are actionable even if
no damage is suffered e.g trespass to land.
Whether the plaintiff has any remedy in some cases of tort depends on the following two
principles of general applications:

Damnum Sine Injuria

Literally translated, this phrase means ‘harm without legal injury.” It refers to a
circumstance where a person has suffered actual harm without any violation of legal
right. A person aggrieved in this way has no legal remedy:
In Mogul Steamship co. V McGregor, Grow & Co (1982) certain ship-owners reduced
their freight charges for the sole purpose of driving their rival out of business. The
plaintiff, who had thus been driven out of business, sued the ship-owners. It was held that
a trader ruined by legitimate competition of his rival could have no redress in tort.

Injuria Sine Dumno

This refers to a situation where a person suffers a violation of his rights without any
actual loss or damage sustained by him. This is especially so in the case of torts which are
actionable per se (that is without proof of any damage) such as trespass to land, libel etc.
In such cases, the court can award the damages to the plaintiff.
In Ashby v White (1703), the defendant, a returning officer, wrongfully refused to register
a properly tendered vote of the plaintiff who was a legally qualified voter. In spite of this,
the candidate for whom the vote tendered was elected, no loss was suffered by the
rejection of the vote. It was held that the defendant was liable for depriving the plaintiff
of his legal right of registering his vote.

Tortuous liability can be determined using Fault Principle

Most torts are based on the fault principle. Under this principle, it is necessary to
establish some fault on the part of the wrongdoer because he can be made liable. In tort, a
person is said to be at fault where he fails to live up to some ideal standards of conduct
set by law.

Elements relevant in the determination of a fault

Three elements are relevant in the determination of a fault, and any one of them may be
relied upon:

1. Intention
Where a person does a wrongful act desiring that its consequences should follow, he is
said to have intended; and to that extent there is some amount of fault on his part.

2. Recklessness
An act is said to be done with recklessness when it is done without caring whatever its
consequences might be. Recklessness, as such, constitutes fault on the part of the
wrongdoer.

3. Negligence
A person is also at fault where he does a wrongful act negligently i.e. where the
circumstances are such that he ought to have foreseen consequences of his act and
avoided it altogether.

Forms of Tort
There are four forms of torts. These include:
1. The tort of negligence
2. Tort of nuisance
3. Tort of trespass
4. Tort of defamation

Tort of negligence
Negligence has been defined as the omission to take such care as under the
circumstances it is the legal duty of a person to take care. It is not positive idea. That
means it is about not doing something, hence omission and not commission. It also has
nothing to do with state of the mind.
In Blyth V Birmingham Ltd the court defined it as “the omission to do something which a
reasonable man guided upon these considerations which ordinarily regulate the conduct
of human affairs would do or doing something which a prudent and reasonable man
would not have done.”

Conditions of liability for negligence

The tort of negligence has four ingredients and to succeed in an action for negligence, the
plaintiff must prove:

1. That the defendant was under legal duty to exercise care

The defendant must have been under a duty to take care as there cannot be any liability
unless there is a breach of some legal duty. Such duty may be the ordinary common law
duty or a special duty imposed by statute or private act. Simply put it is neglect of some
care we are bound to exercise towards somebody.
Lord Atkin in Donoghue V Stevenson formulated the neighourhood principle which helps
to decide if in a particular case the duty of care exists. He observed that, “you must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour.”
He defines neighbour as “persons so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my
mind to acts or omissions which are called into question.”
He further observed that “the rule that you are to love your neighbour becomes in law
you must not injure your neighbour”.

2. That the duty was towards the plaintiff

The duty of care must be towards the plaintiff.
3. That there was breach of that duty
4. That there were damages

TORT OF DEFAMATION
The generally accepted definition of the word defamation is ‘the publishing of
statements which may tend to lower plaintiff in the estimation of the right thinking
members of the society generally, to cut him off society or to expose him to hatred,
contempt or ridicule1.”
In Kenya though, the law of defamation is governed by the provisions of the Defamation
Act CAP 36 laws of Kenya, the interpretations by the Kenyan courts and the English
common law.
A person’s reputation is the estimate in which others hold him, not the good opinion
which he has of himself.
Every person in modern society has an inviolable right to the preservation of his
reputation as against the world. He is entitled to his good name and to esteem in which he
is held by others and has the right to claim that his reputation will not be disparaged by
defamatory statements made about him to a third person without lawful justification or
excuse.
Over the years, constant effort has been made to protect the individual through his
reputation, in person and property.

1
S M W vs. Z W M [2015] eKLR
To man, his good repute is the greatest assets he possess, greater in value than his wealth
or property.
An injury to reputation is thus as much, or in many cases, more damaging and disturbing
than loss of wealth or property.
The primary aim of the law of defamation is accordingly two folds-
 To prevent a person from indulging in unnecessary or unwarranted or false
criticism arising possibly out of malice or personal vendetta or merely as past
time and thereby laying down standards of speech and writing
 At the same time, to encourage and maintain honest, legitimate and true criticism
for the benefits of society.

The central problem which has however confronted the courts is the manner in which
reconciliation between protection of individual reputation in society where freedom of
speech is being given increasing importance and how public interest is to be achieved.
The balancing act has been between the rights of a person to preserve his reputation and
the interest which every person has in freedom of speech.
The wrong of defamation protects reputation and defences to the wrong (privilege and
truth) protect freedom of speech.
With the invention of new, speedy and dynamic methods of dissemination of information
like the print media, broadcasting, wireless and now the internet, the law of defamation
has assumed importance and vigour.

Defamation proper
Defamation is the publication of statement which reflects on a person’s reputation and
tends to lower him in the estimation of the right thinking members of society generally or
tends to make them shun him.
In the case of Sim v Stretch (1936) 2 All ER, the court observed thus: “A claimant is
defamed if words are published about him, which tend to lower him in the estimation of
right thinking members of society generally.”
Defamation sometimes is defined simply as the publication of a statement which tends to
bring the person to hatred, contempt or ridicule.
This is not quite exact for a statement may possibly be defamatory even if it does not
excite in reasonable people‘s feeling so strong as hatred, contempt or ridicule and the
definition is defective in omitting any reference to the alternative of tending to shun or
avoid.
The addition is necessary for falsely imputing insolvency or insanity to person is
unquestionably defamation although far from tending to excite hatred, contempt or
ridicule, it could arouse pity and sympathy in the minds of the reasonable people who
nevertheless would decide to avoid or shun him in the society.
It is primarily defined to encompass an intentional false communication, either published
or publically spoken by words, signs or visible presentations that injures another’s
reputation or good name;
 Holding up of a person to ridicule, scorn or contempt in respectable and
considerable part of the community;
 To diminish the esteem, respect, goodwill or confidence in which the
plaintiff is held;
 To excite adverse, derogatory or unpleasant feelings or opinions against
him;
 It refers to assertions which are calculated to diminish the respect and
confidence in which the plaintiff is held.

A defamatory statement is not necessarily made in words, either written or spoken. A

person may defame another by his acts no less than his words. To exhibit an insulting
picture or cartoon holding up the plaintiff to ridicule or contempt is an alternative libel.
The most famous instance of this case is Monson v. Toussands Ltd (1894) 1 QB 671
where the defendant had exhibited a wax model of the plaintiff with a gun in a room
adjoining the Chamber of Horrors. The plaintiff had been tried for murder and acquitted
on the verdict of ‘not proven’ and a representation of the scene of the alleged murder was
displayed in the Chamber of Horrors. The Court of Appeal considered that though in all
the circumstances the case was not clear enough the exhibition was capable of being
found to be defamatory.
Under section 194 of the Penal Code, libel is defined as “Any person who, by print,
writing, painting or effigy, or by any means otherwise than solely by gestures, spoken
words or other sounds, unlawfully publishes any defamatory matter concerning another
person, with intent to defame that other person, is guilty of the misdemeanor termed
libel”
Where “defamatory matter” is matter likely to injure the reputation of any person by
exposing him to hatred, contempt or ridicule, or likely to damage any person in his
profession or trade by an injury to his reputation; and it is immaterial whether at the time
of the publication or defamatory matter the person concerning whom the matter is
published is living or dead.
Further, where ‘publication’ is defined under “196; (1) as a person publishes a libel if he
causes the printing, writing, painting, effigy or other means by which the defamatory
matter is conveyed to be so dealt with, either by exhibition, reading, recitation,
description, delivery or otherwise, that the defamatory meaning thereof becomes known
to either the person defamed or any other person.

Types of defamation
Defamation constitutes two separate forms, depending upon the means of dissemination-
libel and slander- these can also be termed as the two methods of practiced defamation.
In libel, the defamatory statement is made in permanent and visible form such as writing,
pictures or effigies.
A slander, on the other hand, is made in spoken words or any other transitory form,
whether visible or audible such as gestures or inarticulate but significant sounds.
It’s not always easy to determine in a particular case whether a certain course of action is
libel or slander.
What the true difference between the two is that the slander is addressed to the ear and
libel to the eye or is it that libel is defamation in a permanent form while slander is
conveyed by some transient method or expression.

Libel is-
1. Publication of a false and defamatory statement tending to injure the
reputation of another person without justification or excuses;
 2. In some permanent form e.g. written, printed, pictures, statue, waxwork,
effigy, caricature, signs or picture marks on the walls;
3. Under (English) law, is both a civil & criminal wrong;
4. Is by itself, an infringement of the right to reputation and no actual damage
need to be proven.

Slander is-
1. False and defamatory statement tending to injure the reputation of
another;
2. In some transient or momentary form e.g. spoken words or gestures;
3. Only a civil wrong;
4. Is actionable only when special damage can be proven (subject to certain
exceptions).

When is slander defamatory per se (exceptional cases)

Some statements are so defamatory that they can be considered as defamatory per se; and
the plaintiff does not have to prove that the statement harmed his reputation. The classic
examples of defamation per se include the following:
1. Imputation of a criminal offence
Where the defendant makes a statement which imputes a criminal offence punishable
with imprisonment then the slander is actionable per se.
There must be direct imputation of offence not merely of suspicion of it and the offence
must be punishable by imprisonment in the first instance. If the slander goes into the
details of the offence charged it is not actionable per se if the details are inconsistence
with one another.
In Jackson V Adams (1835)2 Bing NC 402, the defendant said to the plaintiff, a church
warden, “who stole the parish bell ropes, you scamping rascal?” As the position of the
ropes was vested in the church warden, theft of them by the plaintiff was at that time
impossible.
2. Imputation of an infectious or contagious disease likely to prevent other persons from
associating with the plaintiff. This exception always includes any sexually transmitted
diseases and the historical examples of loathsome diseases such as leprosy. Allegations
that that a person is afflicted by AIDS may well constitute a modern variation on this
form of defamation per se.
3. Imputation of incompetence or unfitness, dishonesty or incompetence of any office,
profession, trade, holding or business held or carried out by the plaintiff at the time when
the slander was published. This is the most important exception provided in the
Defamation Act. This Act provides that in action for slander in respect of words
calculated to disparage the plaintiff in any office, profession, calling, trade or business
held or carried out by him at the time of publication, it shall not be necessary to allege or
proof a special damage. Section 3 of the Defamation Act states that; “In any action for
slander in respect of words calculated to disparage the plaintiff in any office, profession,
calling, trade or business held or carried by him at the time of publication, it shall not be
necessary to allege or prove special damage. Whether or not the words are spoken of the
plaintiff in the way of his office, profession, calling, trade or business”.
4. Imputation of unchastity or adultery on any woman or girl is actionable per se. At
common law this required proof of special damage. The Slander of Woman Act (1891)
(UK) made it actionable per se though “the plaintiff shall not recover more costs than
damages unless the judge certified that there were reasonable grounds for bringing the
action”.
The Defamation Act captures this in section 4 as follows: “In any action for slander in
respect of words imputing unchastity to any woman or girl, it shall not be necessary to
allege or prove special damage: Provided that in any such action, a plaintiff shall not
recover more costs than damages unless the court shall certify that there was reasonable
ground for bringing the action”.
In Cassidy vs. Daily Mirror Newspapers Ltd (1929) 2 KB 351, the defendants published
in their newspaper a photograph of one Cassidy with Miss X together with the words
“Mr. C, the race-horse owner, and Miss X, whose engagement has been announced.”
Mrs C was known among her acquaintances as the wife of C, although she and C were
not living together. The information on which the defendants based their statements was
derived from C alone, and they had made no attempts to verify it from any other sources.
Mrs. C sued them for libel. A majority of the Court of Appeal held that the publication
might convey to reasonable persons that the claimant was not C’s husband, that she had
been cohabiting with Mr C and that this impugned her character. The innuendo in this
case was that Mrs. Cassidy was an immoral person who had cohabited with Mr C without
getting married to him. Some of the acquaintances of Mrs. C gave evidence that they had
formed a bad opinion about her on that ground as a result of the publication. The plaintiff
was awarded 500 pounds damages.
In Musikari Kombo v Royal Media Services, the respondent, through its witness Janet
Chapia, admitted to airing the programmes. Janet Chapia testified that on the material day
she was at the Anti-Corruption Court when a lady by the name Elizabeth Kaloki Kombo
was charged. While other journalists were taking photos of her the court orderlies ordered
them to stop and stated ‘Wacheni kupiga bibi ya mheshimwa picha’ which translated in
English to mean ‘stop taking photographs of the Honourable Member’s wife.’
It was pursuant to those utterances that Janet together with other journalists came to the
conclusion that it was the appellant’s wife. She also stated that following the appellant’s
complaint it was established that there was a mistake and that the lady was not the
appellant’s wife. Her then boss, Peter Opondo, indicated that they would offer an apology
to the appellant.

Libel-features
1. The followings facts should be considered when alleging libel against the
defendant;
False-
 The fact that words (constituting the libel) are false need not be
proven by plaintiff; the falsity of charge is presumed in his favour.
Defamation of a person is taken to be false unless it is proved to be
true.
 Malice is assumed i.e. the publication was without just cause or
excuse.
 Motive of the defendant in making the charge is not material in
determining his liability.
  In writing- The defamatory statement must be in some permanent
form like in writing, print, caricature, cinematography film or
scandalous picture.
Essential elements of defamation
Whether the defamation consists of libel or slander, the following requirements are
common to both and must be proved by the plaintiff:-
1) The statements must defamatory
2) It must refer to the plaintiff
3) It must be maliciously published

1) The statement must be defamatory

A defamatory statement is one which has the tendency to injure the reputation of the
person to whom it refers and which tends to lower him in the estimation of right thinking
members of society generally or tends to make them to avoid or shun him. The statement
is judged by the standard of an ordinary thinking member of the society.
As the test is objective one, it is no defence to say the statement was not intended to be
defamatory.
A tendency to injure or lower the reputation of the plaintiff is enough and a statement
may be defamatory although no one to whom it is published believes it to be true.
In Cassidy V Daily Mirror Newspaper Ltd (1929) the defendants published a statement
that the plaintiff’s husband was engaged to some third party. The plaintiff was at that
time living apart from her husband and the defendants got their information solely from
the husband.
It was held: the defendants’ statement conveyed to a reasonable person the plaintiff was
leading an immoral character.
Mere insult or vulgar abuse does not amount to defamation. However there is a difference
of opinion whether abuse amounts to defamation. Winfield is of the view that if the
words are written not spoken, they cannot be protected as mere abuse for the defendant
has the time to reflect on the publication before publishing and his audiences may know
nothing of any dispute or other circumstances which may have led him to write what he
did.
However, according to Salmond, both spoken and written abuses do not amount to
defamation.
In Youssopoff V Metro Goldwyn Mayer Pictures [1934] 50 T.L.R.581, a particular picture
was produced by the defendant. It showed that the plaintiff was raped by a Mr. Rasputin
who was a monk. She sued the company for defamation. One of the issues was whether
the form was slander or libel. The court had no difficult in deciding that the form was
libel. The Court of Appeal held that defamation in a talking film was libel-but there was
no authority as to whether defamatory matter recorded in a gramophone was libel and
slander.
It is important to note that while slander is addressed to the ear, not to the eye, libel it is
in permanent form and it is addressed to the eye. It is however correct to say that to utter
defamatory words with the intention that they shall be recorded is slander only. But when
the record has been made, if it is published, the manufacturer is responsible for libel and
the person whose voice recorded might be made responsible on the ordinary principles of
vicarious liability.
The Defamation Act now provides that broadcasting the words by means of wireless
telegraphy shall be treated as a publication in permanent form.
Although libel and slander are governed by the same principles, there are two differences.
1) Libel is not merely an actionable tort but it is also a criminal offence whereas
slander is a civil wrong only.
2) Libel is in all cases actionable per se but slander is actionable only upon proof of
actual damage.

2. The Statement must refer to the plaintiff

The general rule as to who can sue in a claim of defamation was succinctly discussed in
Gatley & Lindsell on Slander and Libel (supra) at page 197:- “An action for defamation
is a purely personal action. The proper person to sue as a claimant is the person defamed,
and the proper person to be sued as defendant is the person who published the defamatory
words or caused them to be published (though this may include a person vicariously
liable for another). A cannot bring an action of libel or slander against B for words
defamatory of C, even though C has purported to assign to him his right of action; a right
for damages for libel or slander cannot be assigned. If A suffers damages as a result of a
defamatory statement maliciously made about C, who is associated with A’s business, A
may have an action for malicious falsehood, but that is not the same thing as an action for
defamation.”
The true test is of identification. The plaintiff must prove that the statement in question
refers to him. It is not necessary that he should be described by his own name, or
specifically named, mentioned or identified.
It is immaterial whether the defendant meant the plaintiff was/was not aware of his
existence when publishing the defamatory statement.
This much was appreciated by Lord Atkin in Knupffer vs. London Express Newspaper
Ltd. [1944] 1 ALL ER 495 thus:-
“The only relevant rule is that in order to be actionable the defamatory words must be
understood to be published of and concerning the plaintiff.”
Similarly, there is no cause of action, for instance, if the words are defamatory of the
claimant’s relatives, unless they reflect on the claimant. See Gatley on Libel and Slander
Eleventh Edition paragraph 7.1.
In Hulton & Co v Jones (1910) AC 20, a newspaper published a human account of motor
festival at Diappe in which one Artemus Jones described as church warden at Pekham
was accused of living with a mistress in France. The author of the article was ignorant of
the existence of any person of that name. The name so chosen was that of real person, a
barrister and journalist and those who knew him supposed the article referred to him. It
was held by the Court of Appeal that the newspaper was responsible for libel and the
decision was unanimously affirmed by House of Lords.
A statement referring to a real person alleging something true about him may be
defamatory of another person bearing the same name.

It is essential in every action for defamation that the defamatory statement should be
shown to refer to the plaintiff. Court has power to dismiss an action on the ground that no
reasonable person could conclude that the plaintiff could be identified with the person
mentioned in the matter complained of as defamatory. It is never necessary however that
reference to the plaintiff should even be one person although it remains hidden from all
others. At common law it was not necessary that the defendant should have intended the
defamatory statement to refer to the plaintiff. The question was not whether defendant
intended any such reference but whether any person to whom the statement was
published might reasonably think that the plaintiff was referred to.
In Joseph Ochieng vs. Standard Limited, the defendant published the following offending
words:
“Jacky started designing clothes in 1994 after quitting her job as a tour consultant. In
2000, she lost her husband in the Kenya Airways plane crash aboard which he was
travelling to buy more fabric. She suffered a big blow as a result and her in-laws
scrambled to divide her property among themselves”.
The in-laws sued the newspaper alleging that the words in their natural and ordinary
meaning were defamatory of the plaintiffs and were understood to mean inter alia: that
they were cheats and thrive on untrustworthiness, land grabbers of their late brother’s
property etc.
In its defence, The Standard pleaded that the words were incapable of either expressly or
by innuendo referring to the plaintiffs and in the alternative, the defendant pleaded that
the publication is attributed to one Jacky Obiero who made the allegations through an
interview and if the words are found to be defamatory, then the defendant would seek
indemnity from the said Jacky Obiero.
In striking out the defence, the court found that the words were cast as if the plaintiffs
were callous, uncaring and greedy. They were presented as a family of people without the
slightest regard to their son’s widow or her children.
Of greater importance, the court found, the mere fact that the words were uttered by
Jacqueline Obiero, does not absolve the defendant from liability. It published the words
and is not to be excused merely because it did not originate the words.
In Musikari Kombo v Royal Media Services, the court noted that in a claim for
defamation, a plaintiff ought to establish that the offending statement is defamatory to
him/her as explained in Gatley on Libel and Slander 10th Edition at page 8:-
“There is no wholly satisfactory definition of defamatory imputation. Three formulae
have been particularly influential:
(1) would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking
members of society generally";
(2) would the imputation tend to cause others to shun or avoid the claimant" and
(3) would the words tend to expose the claimant to ‘hatred’ contempt or ridicule". The
question what is defamation relates to the nature of the statement made by the defendant:
words may be defamatory even if they are believed by no one and even if they are true,
though in the latter case they are not, of course, actionable.”
In Newstead v London Express Newspaper Ltd. (1944) AC 116I the court of Appeal
carried Hulton Vs Jones to directions further by holding that;-
a) The principle applies where the statement truly related to a real person A and is
mistakenly but reasonably thought to refer to another real person B.
b) Absence of negligence on the part of the defendant is only relevant only in the
sense that it may be considered in determining whether reasonable people would
regard the statement as referring to the plaintiff. Otherwise it is no defence in this
case that the defendant published an account of a trial for bigamy of Harold
Newstead, a 30 year old Camberwell man, but not of another person of the same
name who was a hairdresser and of about the same age. The Court of Appeal held
that the jury would have been justified in finding that reasonable persons would
have understood the words complained of to refer to the latter.
c) Material may be defamatory of a plaintiff even though it doesn’t mention him by
name or even if it contains no key or pointer indicating that it refers to him.

In Morgan vs. Odhams Press Ltd (1971) 1 WLR 1239, a newspaper article alleged that a
girl had been kidnapped by a dog-dopping gang. At the relevant time the girl had been
staying at the plaintiff’s place and the plaintiff produced six witnesses who swore that
they understood from the article that the plaintiff was connected with the gang. The
majority of the House of Lords held that these facts constituted sufficient material to the
jury. It was also held that there is no rule that before the publisher of a defamatory
statement which identifies no definite person can be held liable there must be found in the
statement some key or pointer or peg which refers to the plaintiff persons having
knowledge of particular facts then the innuendo is required. This is a statement by the
plaintiff of the meaning he attributes to the words and he must prove the existence of
facts to support that meaning.
In S M W vs. Z W M [2015] eKLR:- “A statement is defamatory of the person of whom it
is published if it tends to lower him/her in the estimation of right thinking members of
society generally or if it exposes him/her to public hatred, contempt or ridicule or if it
causes him to be shunned or avoided.” The test for whether a statement is defamatory is
an objective one. It is not dependent on the intention of the publisher but on what a
reasonable person reading the statement would perceive. In Halsbury’s Laws of England
4th Edition Vol. 28 at page 23 the authors opined: “In deciding whether or not a
statement is defamatory, the court must first consider what meaning the words would
convey to the ordinary man. Having determined the meaning, the test is whether, under
the circumstances in which the words were published, a reasonable man to whom the
publication was made would be likely to understand them in a defamatory sense.”
In Tolley v Fry & Sons Ltd (1931) AC 333, a successful use of innuendo was made. In
this case, an amateur golfer champion sued the defendants, a firm of chocolate
manufacturers who had published an advert in which there appeared a caricature of Mr.
Tolley hitting one of his most vigorous drivers with a packet of fry’s chocolate sticking
prominently out of his pockets and a comic lady dancing with another packet of Fry’s
chocolate in his hands comparing the excellence of the driver with the excellence of the
chocolate. Mr. Tolley was annoyed at this piece of offensive advert which reflects very
little on the good taste of those who control the advertisement of Fry and Company.
Tolley did not eat Fry’s chocolate and his permission for the advert had not been asked.
The innuendo alleged was in effect that he had consented to the use of his portrait as an
advertisement and the caricature was capable of being construed as defamatory of the
plaintiff.

In Cassidy vs. Daily Mirror Newspapers Ltd (1929) 2 KB 351, the defendants published
in their newspaper a photograph of one Cassidy with Miss X together with the words
“Mr. C, the race-horse owner, and Miss X, whose engagement has been announced.” Mrs
C was and was known among her acquaintances as the wife of C, although she and C
were not living together. The information on which the defendants based their statements
was derived from C alone, and they had made no attempts to verify it from any other
sources. Mrs. C sued them for libel. A majority of the Court of Appeal held that the
publication might convey to reasonable persons that the claimant was not C’s husband,
that she had been cohabiting Mr C with and that this impugned her character. The
innuendo in this case was that Mrs. Cassidy was an immoral person who had cohabited
with C without getting married to him. Some of the acquaintances of Mrs. C gave
evidence that they had formed a bad opinion about her on that ground as a result of the
publication. The plaintiff was awarded 500 pounds damages.
Similarly mere juxtaposition to noxious matter may make an otherwise innocent
representation defamatory. The most famous instance of this is Monson v. Tussands Ltd
(1894) 1 QB 671. The defendant who kept wax works exhibitions had exhibited a wax
model of the plaintiff with a gun in a room adjoining the Chamber of Horrors. The
plaintiff had been tried for murder and acquitted on the verdict of ‘not proven’ and a
representation of the scene of the alleged murder was displayed in the Chamber of
Horrors. The Court of Appeal considered that though in all the circumstances the case
was not clear enough the exhibition was capable of being found to be defamatory.
In Garbet v Hrzel, Waston & Viney Ltd 2 All E.r 359, the defendant published on their
left hand page, the photograph of the plaintiff who was standing behind a camera and
showing photographs of two by-standers. On the opposite page was a photograph of a
completely naked women and beneath the photograph on the left hand page were the
words “of course for another shilling” and went on to the opposite side “you can also
have something like this”.
The plaintiff was a professional street photographer. It was held that the facts supported
the innuendo that the plaintiff exhibited and sold pornographies materials. On the other
hand the mere fact that an article about the plaintiff appeared in a newspaper where
numerous articles attacking dishonest businessmen had appeared in other occasion was
held incapable of carrying a defamatory inference.

Extrinsic evidence is admissible to show that some people perhaps with knowledge of
special facts thought the statement refer to the plaintiff.
In Knuffer v London Newspaper ltd (1944) AC 116 the defendant published an article
about a Russian political party which had a British branch consisting of 24 members led
by the plaintiff. The party was an international organization with several thousand
members and the article referred mainly to its activities in America and France. The
plaintiff alleged that it was particularly applicable to Britain and since the libel concerned
the person responsible for the politics of the party then it personally affected him.
Rejecting this condition, the House of Lord laid down the general rule that where a class
of persons is defamed no one person can succeed unless he proves that the defamatory
statement;-
a) Was capable of referring to him
b) Was in fact understood to refer to him

In the present case the defendant failed. During judgment Lord Porter said:-
“The size of the class, the generality of the charge, and the extravagance of the accusation
may well all the elements to be taken into consideration, but none of them is conclusive.
Each must be considered according to its own circumstances.”
A class of persons is considered defamed only if the publication refers to all its members-
particularly if the class is very small or if particular members are specially imputed.
The Court of Appeal in a case of Jakoyo Midiwo v Nation Media Group Limited &
another [2018] eKLR defined a class of persons as follows:-
“A class of persons is considered defamed only if the publication refers to all its members
—particularly if the class is very small—or if particular members are specially imputed.
There is no dispute that the appellant was at all material times a Member of Parliament
and thus a member of that class or group known as Members of Parliament. A member of
a defamed group, however, lacks the means to vindicate his good name and redress his
injury. Under current defamation law, a group member has no cause of action against the
publisher of the defamation unless the group is very small or the defamatory statement
applies specifically to the member. This rule follows from the requirement that, in order
to establish a prima facie case of defamation, a person must demonstrate that a
"reasonable person" could perceive the defendant's statement to be "of and concerning"
the plaintiff. Unless the defamation designates the plaintiff so that those reading or
hearing the publication understand that the plaintiff is implicated, the plaintiff's
reputation cannot be tarnished. An exception to this general rule arises when the
defamation, though made in group terms, is really a veiled reference to a specific group
member.
However in another case Le Fanu vs Malcom son (1848) 1 HLC 6372, a general statement
or reference to a class may be actionable by a particular plaintiff if the verse in the
circumstances can be taken to refer to him.
In this case, a local newspaper published a letter denouncing alleged cruelty with which
the factory operatives were treated. The verdict of the ruling awarded damages to owners
of the factory by the House of Lords since there were special circumstances which enable
one to identify the plaintiff’s factory.
Similarly, a trading corporation or a company can sue for defamatory statements that
reflect purely upon individual officers or members. The same rule has been extended to
non-trading corporations such as local authorities.

Defamation through innuendo

It is not necessary for libel that a defamatory meaning should be directly or completely
expressed; and it suffices if such meaning and its application to the person alleged to be
defamed can be collected either from the alleged libel itself or from any extrinsic
circumstances, or partly by the one and partly by the other means.
The words of which the plaintiff complains may be defamatory additionally to the
ordinary and natural meaning in the light of facts and circumstances known to persons to
whom the words were published. Where the words are not defamatory in the natural and
ordinary meaning or where the plaintiff wishes to rely upon an additional defamatory
meaning in which they were understood by persons having knowledge of particular facts
then the innuendo is required. This is a statement by the plaintiff of the meaning he
attributes to the words and he must prove the existence of facts to support that meaning.

2
The House of Lords held that where the defamatory publication applies to a class of individuals
yet descriptions in such a publication are capable of being, by implication, applied directly to an
individual in that class, then an action may be maintained by such an individual in respect of the
publication. Accordingly, each factory proprietor had a valid claim where the defendant
newspaper made a publication referring to practices “in some of the Irish factories” and this could
be imputed to mean the factory of an individual plaintiff. Lord Chancellor Cottenham noted that
it was necessary for the protection of the law to extend to such circumstances where the libellous
publication is framed in broad terms but where the writer of the libel clearly intended to mean
specific individuals.
In Cassidy V Daily Mirror Newspaper Ltd (1929) 2 KB 3313 the defendants published a
statement that the plaintiff’s husband was engaged to some third party. The plaintiff was
at that time living apart from her husband and the defendant got their information solely
from the husband. Held: the defendants’ statement conveyed to a reasonable person that
the plaintiff was of immoral character; the innuendo alleged by the plaintiff was therefore
established and the plaintiff was entitled to succeed in her action against the defendants.

Words may convey a defamatory imputation only by reason:

 of some special knowledge available to those whom they were published,
 of the circumstances of publication,
 or of some special meaning or inference to be attached to or drawn from the
words.
The words are then said to carry innuendo. In that case, the question is what meaning
would be attached to the words by a reasonable man having special knowledge of any
relevant facts or meanings.
In the Standard Ltd v Omondi, Visram J stated: “Where the plaintiff relies on a legal
innuendo meaning, he must plead particulars of facts and matters on which he relies in
support of such sense. These facts or matters will generally incorporate either a special
definition of the words known only to a limited class of persons or facts extrinsic to the
libel which, if known about, affect the way words complained of are understood. In either
case, then plaintiff must identify the person or persons to whom the words were (sic)
published and who are alleged to have knowledge of the special meaning or the extrinsic
fact. In default of compliance with the requirements for pleading legal innuendo
meanings, the pleaded meaning may be struck out”
In the case of Nation Newspaper Limited vs. Chesire [1984] KLR the court stated that
“An action for libel by innuendo depends for its success on the proof by the offending

3
The claimant was known as the lawfully wedded wife of a famous race-horse owner and former
General of the Mexican Army. The claimant and her husband lived separately but he often visited
her at her workplace. The defendant newspaper published a photograph of the claimant’s husband
with a woman labelled as Miss X, to whom – as alleged by the attached article – he was engaged.
The Court of Appeal held, affirming the lower court’s decision, that the publication in question
was capable of constituting defamation. It found that the jury was right to find that the publication
made the reasonably minded person believe that the claimant’s moral character was questionable.
publications and evidence of the special circumstances which were known to the
recipients of the libel must therefore be lend.”

3. It must be maliciously published

Publication, in its legal sense, implies making or communicating the defamatory matter to
some person other than the person defamed. It is not necessary that the communication be
made to more than one person. Publication needs not be intentional nor can it be justified
or excused on the ground that it was made accidentally, by mistake or in jest or honestly
believing in its truth. The concept of publication can best be understood by the following
illustration- sending a defamatory article to the editor/printer of a newspaper constitutes
publication- the appearance of the article in the paper is a second publication and
constitutes a separate cause of action.

Pullman v Walter Hill & Co. Ltd [1891] 1 QB 524 describes publication as the making
known the defamatory matter after it has been written to other person other than the
person for whom it is written. If a statement is sent to the person for whom it is written,
then there is no publication of it for one cannot publish a libel of a man to himself.
Communication of defamatory statement to one person other than the defamed shall be
enough. A special rule is that a communication between spouses about a third party is not
publication. This used to be explained by reference to the degree of unity between
husband and wife. However a communication by a third party to one spouse about the
other is publication. See Theaker v Richardson 1962 1 WLR 151.
Another special rule is that by dictating letter to a secretary, an employer commits a
slander though he will probably be covered by the defence of qualified privilege. If the
secretary gives it back to him the typed copy she is not making a fresh communication. A
statement not heard by the recipient because e.g., is deaf or is not understood because it is
written in a language he does not know or because is not obviously referable to the
plaintiff is not treated as already published. Nor is a person liable if a third party in his
own initiative hears or sees the defamation. However he will be liable for statements
which he intended a third party to know or should have foreseen might come to his
attention.
So in Huth v Huth [1955] 3 KB 32, the opening of a letter by a clerk out of curiosity and
in breach of his duties was held not to amount to a publication by the defendant. The
defendant should anticipate that a husband letter might be opened by a secretary and
therefore correspondence will be liable for the resulting publication to the secretary
unless the letter was the only one personal or private4.
The burden of proving publication rests upon the plaintiff but in many circumstances it is
considerably eased by certain rebuttable presumptions of the facts. Spoken words are
deemed to have been published to persons within earshot. Also if it can be shown that a
letter has been properly addressed a publication to the addressee is presumed.
The Justice Evan Gicheru vs. Andrew Morton & Another (2005) suit relates to a
statement published by the defendant, Andrew Morton, a well-known author of several
books and biographies, in his book The Making of African Statesman. The offending
words were: “In September1990, at the end of his 110 day inquiry, Troon handed over his
weighty 150 page report to the Attorney General Mathew Muli, fully expecting the
immediate arrest of his two principal suspects, Nicholas Biwott and Hezekiah Oyugi.
Instead, the government set up a judicial inquiry chaired by Mr Justice Evans Gicheru
“Oyugi even tried to direct the inquiry’s conclusions, regularly entertaining the
commission judges at his home, on at least one occasion slaughtering a goat in their
honour. It was only after the commission had been sitting for a year that Troon was called
back from Britain to give his evidence…The fact that the commission had lost sight of its
original brief by admitting all kinds of wild and often malicious conjecture lay behind the
president’s decision in November, 1991, to bring its deliberations to an end…….”
The plaintiff was appointed a puisne Judge in 1982 after having served as a state counsel
for a period of about nine years. He was elevated to the Court of Appeal in 1988 and
subsequently became its presiding judge, a position he held during the trial for the libel
sued upon. In 1990, he was appointed Chairman of the judicial commission of Inquiry
into the death of Dr. Robert Ouko, the then Foreign Affairs minister. The plaintiff
appointed the Chief Justice of Kenya in early 2003.
The court observed that the case was aggravated by the defendant’s denial that the words
lacked and /or were incapable of defamatory meaning and the fact that the defendants

4
Pullman v W Hill & Co
instituted proceedings to strike out the suit. The plaintiff was awarded the sum of Ksh
6,000,000 as a composite figure for the defamatory publication.
As Windeyer J. well said in UREN V JOHN FAIRFAX & SONS PTY. LTD., 117
C.L.R 115, 150:
“…, a man defamed does not get compensation for his damaged reputation. He
gets damages because he was injured in his reputation, that is simply because
he was publicly defamed. For this reason, compensation by damages operates in
two ways – as a vindication of the plaintiff to the public and as a consolation to
him for a wrong done. Compensation is here a solatium rather than a monetary
recompense for harm measurable in money.”

Repetition of a statement
One who repeats a defamatory statement made by another person is liable if the repetition
constituted a publication even if he does not know the statement is defamatory. The
original maker of the statement is liable for such publication if he has authorized it or
seems it is reasonably foreseeable. Under this principle, the author, publisher, printer of a
defamatory material or even such mechanical distributors as news agents authors,
bookshops and libraries are liable in defamation for dissemination of the material among
the publisher. However in such mechanical distribution, the defence of innocent
publication is applicable in different cases.
In Eglantine Inn vs. Smith [1948] NI29, the printers were held liable on these principles
because they clearly envisaged that the distribution of the defamatory material among the
public and could therefore be taken to have authorized it. Thus every repetition is afresh
publication giving rise to a fresh course of action against each successive publisher.
In Vizetelly vs. Mudies Select Library Ltd [1900] 2 QB 170, the owner of a circulatory
library were liable for allowing people to use book which the publishers had asked them
to return as they might contain libelous matters. Romer L.J laid down the rule that
distributors would not be liable if they prove that:
a) They were innocent of any knowledge of libel contained in the facts in question
b) There was no reason for them to be aware that the words contained libelous
materials
c) There was no negligence in failing to know the works were libelous
In Goldsmith vs. Sperring Ltd (1977) 1 WLR, 478, Sir James Goldsmith sued a magazine
called Private Eye and 37 of its distributors for a series of defamatory actions. Actions
against some of the distributors established the truth of the precise charge which has been
made which is ultimately a matter of interpretation of the facts. Lord Denning, relying on
his own research, doubted the validity of the above. The fact that both parties had
conducted the case on the assumption that both secondary distributors can be sued subject
to the defence of innocent publication was in the Lord Denning’s view irrelevant and the
court should remedy the error.
The other judges in the court however, refused to accept his view. It was wrong for the
judge to conduct his own research and before such a view could be accepted it needed to
be argued by the counsel for both sides.
In Wakley vs. Cookie & Healey (1849) 4 Exch.511, the defendant called plaintiff a
“libelous journalist” and proved that he once had been convicted of such a charge. The
court took the view that these words did not mean that the plaintiff had not been guilty
upon one occasion only if having published a libel and that he had not been guilty of
gross misconduct as a journalist.
The defence of truth accordingly failed. In this case the statement was understood to
mean the plaintiff habitually libeled people. The defendant however has the onus of
establishing the truth of what he has said i.e. he must justify the statement. The defendant
justifying need only show that his statement was substantially accurate.
In Alexander vs. North Eastern Railway the plaintiff moved to court over a statement
made by the defendant that he had been sentenced to a time of three weeks imprisonment.
Further, the Defamation Act provides that the defence will not fail if truth of several
charges is not established provided that having regard to the truth of any charges, the
charge not proved does not materially injure the plaintiff’s reputation. If for example, the
defendants states the plaintiff’s conducts amounts to only one of these offences. The
defence of fair comment and qualified privilege is that even malice on the part of the
defendant does not deprive him of the defence of justification.
The defence of justification is a dangerous defence also because if the defendant fails to
prove the truth of the statement being made he may end up paying aggravated damages.
DEFENCES AGAINST DEFAMATION
1. Unintentional defamation/innocent defamation

At common law the fact that the maker of statement was unaware of the circumstances
making it defamatory did absolve him from liability. This defence is provided for under
section13 of the Defamation Act. The Act provides for the defendant to make an offer of
amends. If the offer is accepted, no civil proceeding will lie. If not accepted it shall be a
defence in any proceedings for the defendant to show and prove that the words
complained of were published by the defendant innocently, in relation to plaintiff and that
the offer was made as soon as practicable after the defendant received notice that they
were or might be defamatory of the plaintiff, and has not been withdrawn.
In order to redress this situation, the Defamation Act (section 13) enables a defendant to
make an offer of amends for an innocent defamation. The provision of this Act provides
that the words shall be treated as published innocently in relation to another person and
only if;-
a) The publisher did not intend to publish them and concerning that other
person did not know the circumstances by virtue of which they may be
understood to refer to him.
b) That the words were not defamatory on the face of them and the publisher
did not know the circumstances by virtue of which they may be
understood to refer to him and either case the publisher exercised all
reasonable care in relation to the publication.

Under these provisions, although negligence is not a requirement of liability, it is

nonetheless the remedy in an offer of amends will be excluded if the publisher did not
exercise reasonable care in relation to the publication.
The Defamation Act (section 13) further provides that the result of offer of amends;-
a) If the offer is accepted by the party aggrieved and is duly performed, no
proceedings can follow.
b) If the offer is not accepted by the party aggrieved it shall be a defence in any
proceedings by him against any person making the offer in respect of the
 publication in question to prove that the words complained of were published by
the defendant innocently in relation to the plaintiff and that the offer was made as
soon as practicable after the defendant received notice that their words might be
defamatory of the plaintiff and has not been withdrawn.

The reason why this provision of the Defamation Act was set was to help mitigate the
rigidity of the common law only partially in that the offer of the amend has many
qualification of technicalities, requirements that is unlikely that it will avail many
defendants.

2. Justification or truth
In this case, the plaintiff does not have to prove that the statement complained of was
false. The burden is on the defendant to prove that it was true. Truth is a defence because
the law will not punish anyone in respect of an injury to a person which is based on truth.
Justification is a full defence. Section 14 of the Defamation Act provides that in action
for libel or slander in respect of words containing two or more distinct charges against the
plaintiff, a defence of justification shall not fail by reason only that the truth of every
charge is not provided, if the words not proved to be true do not materially injure the
reputation of the plaintiff having regard to the truth of the remaining charges.
Matters of government, national or local management of public and religious institutions,
the conduct of foreign policy etc can obviously be brought under the heading of public
interest.
Even the private behavior of Cabinet misters may fairly be commented on if this shed on
matters of honesty and integrity which are qualities of holders of public office.
There are however two qualifications that should be added:-
(a) It is not always essential that the facts upon which the comment is based should be
stated in the alleged libel.

b) The comment must be an opinion, not an assertion of true facts.

There is however one instance where facts though untrue, can be subject of opinion and
protected as fair comment. This is where the facts themselves though untrue, are
protected by image. Thus if a statement made by a witness, fairly and accurately reported
and attributed to the witness who made it, then no doubt that although the evidence given
by the witness is afterward shown to be false, the statement reported can be made the
subject of fair comment. For instances, a statement that X was drunk last night and his
behavior was disgraceful, can be a statement of facts or a statement of opinion. If X’s
behavior after drinking was in fact disgraceful then it is a statement of fact.
However, if the second statement of opinion is by the defendant then it is a subject of fair
comment.
a) In Dakhy Vs. Labouchere (1908) 2K.B 325, the plaintiff described himself as a
“specialist for the treatment of deafness, ear, nose and throat diseases” and the
defendant described him as a “quack of the rankest species.” The court was
inclined to believe this was a comment and not a statement of fact

The question is whether there is a provision sufficient substratum of fact stated or

indicated in the words which the facts or subject matter of action and whether the facts or
subject matter on which comment is made are indicated with sufficient clarity to justify
comment being made. The substratum of facts or subject matter may be indicated implied
in the circumstances of the publication. In Kemsley vs. Foot (1952) A.C345 ,the
defendant published an article referring to one of the Beaverbrook newspapers and
described it as lower than Kemsley (Lord Kemsley), Lord Kemsley being the owner of
another group of papers. Was this an allegation of fact in which justification would be the
right defence or an expression of opinion? If the defendant states what some public
person has done and then says that it is disgraceful, this is an expression of opinion. But
if he asserts that the plaintiff had been guilty of disgraceful conduct and does not state the
conduct was this an allegation of fact. The same is true if he states an inference without
the facts on which it is based unless as in this case the basic facts are initiated by the
words complained of. The House of Lords took the view that the defence of fair comment
should be available even where the conduct of the Kimlely press was the fact on the
comment was made.
b) Secondly, a defence of fair comment shall not fail by reason only that the truth of
every allegation of fact is not true
According to the provisions of the Defamation Act, in an action for libel or slander in
respect of words consisting partly of allegation of facts and partly of expression of
opinion, a defence of fair comment shall not fail by reason only that the truth of every
allegation of facts is not true. If the expression of opinion is fair comment, having regard
to such facts alleged or referred to the words complained of as true.

3. Fair comment
The defence of fair comment stems from the belief that honest and fair criticism is
indispensable in every freedom loving society. The law in this area weighs in the interest
of the plaintiff against freedom of speech and it is for the judge to rule whether any
comment was called for in the particular situation and to see whether the statement are
facts or opinion. If the latter, whether they are honest or fair, the requirements of the
defence are as follows;

(a) Public interest

The comment must refer to matters of public interest. In London Artist Ltd. vs. Littler
(1969) 2 QB 375, Lord Denning MR said: “Whenever a matter is such to affect people at
large so that they may be legitimately interested in or concerned at what is going on or
what may happen to them or to others, then it is a matter of public interest in which
everyone is entitled to make fair comment.”
A reference to people at large should not be taken to suggest that the statement
complained of refers to one person or a few persons only it can never be of public
interest.
In London Artists Ltd. Vs. Littler (1969) 2 QB 375, defendant, an impresario, wrote and
published at a press statement letter suggesting that the plaintiff, organizers in the
entertainment business, had taken part in what appears to force the end of a successful
play which the defendant was producing while arranging for all leading players to give
identical notices to leave. This was implied to stop the play. The defendant letter was
written after he had received the players notices were settled on the understanding that
they would no longer sell Private Eye. Negotiations with others including publishers and
editors continued. The question was whether they should be allowed, or whether the
proceedings represented an abuse of the judicial process. For the Lord Denning, the latter
was the correct view not only because he refused to accept that an action lay against
secondary distributors was to shut off the channels of distribution and would seriously
affect the notion of freedom of the press.
However, the majority of the Court of Appeal felt otherwise. The rule taken was the
plaintiff in an action for libel has a cause of action unless there was strong evidence to
show that the plaintiff’s purpose in bringing this action was not to protect his reputation
but to destroy the paper.

b. The comment must be fair

It is important that the defendant honesty holds his opinion. It is not for the court to
substitute its own judgment as to what is fair. A statement made with malice, evil motive,
spite or ill-will negates the plea of fair comment. The question which must be considered
is fairness. The best test for this is probably formulated in Merivale vs. Carson
(1887)20Q.B.D 275 and modified in Turner Vs. Metro-Goldwyn –Mayer (1950)1All ER
449 at461 as follows;-
“Would any honest man, however prejudiced he might be, or however exaggerated or
obstinate his views are, have written this criticism?”

In the case of Nation Media Group Limited & another v Alfred N. Mutua [2017] eKLR,
the Court of Appeal held that
28.To sustain the defence of fair comment, the appellants were required to demonstrate
that the words complained of are comment, and not a statement of fact; that there is a
basis of fact for the comment, contained or referred to in the article complained of; and 7
that the comment is on a matter of public interest. [See Gatley on Libel and Slander, 8th
edition, 1981 (Sweet & Maxwell) at paragraph 692 at page 291].
29. The respondent could however defeat the defence of fair comment by showing that the
comment was not made honestly or was actuated by malice.
40. The court further stated

First, the comment must be on a matter of public interest. Second, the comment must be
recognizable as comment, distinct from an imputation of fact. Third, the comment must be
based on facts, which are true or protected by privilege. Fourth, the comment must
explicitly or implicitly indicate, at least in general terms, what are the facts on which the
comment is being made. The reader or hearer should be in a position to judge for himself
how far the comment was well founded. Fifth, the comment must be one which could have
been made by an honest person, however prejudiced he might be, and however
exaggerated or obstinate his views.”

4. Privilege
There are two types of privilege
1a) Absolute privilege –this is limited in scope but affords complete protection.
b) Qualified privilege –this is wider but can be defeated by malice

A privileged statement may be defined as one which is made in such circumstances as to

exempt from that a person affects the reputation of another at his own risk. In other
words, privilege includes those exceptional cases in which it is not enough in order to
create liability to prove that the defendant has published a false and defamatory
statement.
Privilege arises not from the content of the defamatory statement but from the
circumstances of his publication or identity of the publisher.

Absolute Privilege
A statement is said to be absolutely privileged when it is of such a nature so that no
action will lie for it however false and defamatory it may be and even though it is made
maliciously.
The defence of absolute privilege is available in the following cases;-
a) Any statement made in the course of and with reference to judicial proceeding by
any judge, jury or party ,witness or advocate
b) Where an accurate report of complete judicial proceeding is published in a
newspaper.
c) Any statement made in Parliament by a Member.
d) Parliamentary papers published under the direction of parliament and any
publication thereof by any person in full.
e) Certain statements made by an officer of state to another in the course of official
duty
f) Communication between husband and wife

Qualified privilege
When an occasion of qualified privilege exists, a person provided he is not actuated by
malice is entitled to make defamatory statements about another. Like absolute privilege,
here, also, the right of freedom of speech prevails over the right of reputation but only to
a limited extent. The statement must be made honestly and without improper motive.
Qualified privilege is therefore an intermediate case between absence of privilege and the
presence of absolute privilege. The principle is that a statement is protected if it is fairly
made by a person in matters where his interest is concerned.
No complete list of such occasions is possible but it is generally agreed that the main
instances are the following:-
a) Statements made in the performance of a duty
b) Statements made in protection of an interest
c) Reports of parliamentary, judicial and certain other public proceedings.
d) Professional communication between an advocate and client

If the report is not accurate and fair it is not protected.

5. Statement in protection of an interest

Even when there is no duty to make the statement, it is nevertheless privileged if it is
made in the protection of some lawful interest of the person making i.e. if it is made in
the defence of his own property or reputation. But here also there must be reciprocating
interest to be protected on one side and a duty to be protected on the other.
Thus in Adams vs Ward (1917) A.C 309, the plaintiff in the House of Commons had
made against X charges of wounding character as he was compelled to do by regulations
he referred the matter to the Army council which after investigation found that the
attacks was unjustifiable. It ordered the defendant, its secretary, to publish in the
newspaper, a letter to X inciting him and also containing statement defamatory of the
plaintiff. The House of lords held that the occasion of this publication was privileged and
that the privilege was not destroyed either by the number of people whom the publication
might reach or by reason of the fact that it contained matters defamatory of the plaintiff
where the defendant’s character had been publicly attacked by the plaintiff.
Similarly, brewers who answered a complainant by a publican of poor quality of beer
supplied by him by voicing a suspicion that he had watered it were covered by the
privilege in Osberne vs Boulter, but no privilege attaches the sender of document made
by mistake however genuine or the nature of occasion or the interest of the recipient.
There may sometimes be a common interest and a reciprocating duty in respect of the
subject matter of the communication. Thus a master has a sufficient interest in the
honesty of his servant to be privileged in warning him against the character of his
associates (Hunt v. G.N.ROY)

6. Apology
It will be a mitigating if the defendant provides evidence that he made or offered an
apology to the plaintiff, in respect of the words complained of, before the commencement
of the action or, where the action has commenced before there was an opportunity of
making or offering such apology, soon thereafter as he had such opportunity.
Apologies should be treated carefully, because in numerous occasions, they may consider
this to be an admission of liability. In the case of Machira, where a newspaper published
a photo of an advocate and one Wahu Njoroge assaulting him, and wrongly claimed she
was his client, accosting him on money matters. On demand, the paper published a
“correction “&”Apology” thus;
“In our issue of November 10, we published front page picture whose caption gave an
impression that Ms Grace Wahu Njoroge was Machira’s client. Any embarrassment
caused by our report”.
When in the subsequent suit, the paper pleaded justification, the court stated inter alia;
“By their apology or clarification which I understand them to mean it was false. How can
they then be allowed to deny the allegation to that effect made by the appellant in his
plaint?”
In the case of Joseph Ochieng &8 others vs. Standard Limited HCCC no.1760 of 2002
(unreported), Justice Lenaola stated “As the defendant refused to publish an apology and
yet it almost admitted in its defence that it had no cause to publish the offending I words
shall award Kshs1,000,000 in aggravated damages”.
The point to note being, if a defendant has indicated that it has no defence or good cause
for publishing a defamatory statement, then it would be mitigating to publish an apology
whilst this failure can be penalised by the court by way of aggravated damages.

7. Limitation of time
Section 20 of the Defamation Act provides that an action for libel or slander may not be
brought after the end of twelve months from such date. It is therefore a defence if an
action is brought outside the limitation.
8. Statements in performance of a duty
A statement is qualifiedly privileged if it is made in the performance of any legal, social
or moral duty imposed upon the person making it. The privilege is that of the publisher,
the person to whom the statement is published needs no privilege because he committed
no tort. Nevertheless, it is essential that the person to whom the statement is made has a
corresponding interest or duty to receive it.
This is not to say that both parties must have a duty or both an interest; one may have an
interest and the other duty the duty need not be one enforceable at law. It sufficient lay
under an obligation to say what he did.
It is not enough that he believed himself to be under such an obligation. It is on the judge
to decide whether on facts such a duty existed.
A statement which is volunteered without any inquiry on the part of anyone possessing a
lawful interest is unprivileged unless there is such confidential or other relation between
the parties. Thus a father or relative may warn a lady as to the character of the man whom
she proposes to marry without being asked (Todd vs. Hawkins).
In Watt vs. Longdson (1930) 1 K.B 130,a company director informed the chairman of his
suspicion that the plaintiff, an employee, was misbehaving with women and he also
informed the plaintiff’s wife. It was held that the communication to the chairman was
privileged but not the wife for although she had interests in hearing about the allegation;
the defendant had no moral or social duty to inform her. Again, a host owes a duty to his
guest which will justify him in warning him (guest) against a son suspected of dishonest.
A statement is malicious when it is made for some purpose for which the law can accord
privilege for making it if the accession is privileged it is for some reason and the
defendant is only entitled to the protection of the privilege if he uses the occasion for
some indirect and wrong motive.
In Horrorock vs Lowe it is neither necessary nor sufficient to constitute liability, that the
statement was made without reasonable and probable cause.
Not necessary for if the statement is made maliciously and is in fact false, the defendant
is liable for it although he had good grounds for believing it to be true. Malice destroyed
the privilege and leaves the defendant subject to the ordinary law by which a mistake
however reasonable is no defence.
The law requires that a privilege shall be used honestly but not that it should be carefully.

Summary of selected cases

1. Akiwumi Case
This emanates from similar facts as those of Evans Gicheru case. The plaintiff, a former
High court Judge and later a Court of Appeal Judge, sought damages for libel and
exemplary damages from Andrew Morton and another for defamatory statements
published in a book “The Making of an Africa Statesman” authored by the defendant.
The said publication imputed that the Judges appointed to head the commission of
inquiry were entertained by one of the suspects in the Ouko murder, during the pendency
of the inquiry.
Justice Ransley found that the said words impeached the character and reputation of the
plaintiff and awarded the sum of Ksh.2.5million as compensatory damages.
Considering the nature of the publication, orders of injunction restraining further
publication were also granted

3.Obure Vs Alwaka t/a Headline Publisher and Others

Justice Leonola awarded the sum of Ksh17million (Sh15million compensatory and Sh2
million punitive) to the plaintiff who was a politician for allegation of sexual misconduct
which affected his family.
In this case, a former Member of Parliament and cabinet minister sued for defamation
based on article in the “Weekly Citizen” newspaper whose heading was ‘Ex –minister
Obure steals man’s wife’ by Ronald Kwaba.

4. Ojiambo vs Standard Limited &2 others

The plaintiff was at the material time an advocate of the High Court of Kenya and a
senior partner in the firm of M/S Kaplan & Stratton Advocates. The defendants were
publisher, an editor and a reporter respectively of the Sunday Standard, a newspaper sold
throughout Kenya and available on the internet.
Sometime in 1997, the defendant published an article to the effect that plaintiff, among
other constitutional law experts, had been engaged to work on the draft constitution due
to be presented to Parliament for debate. The article alleged further that the draft may
remain virtually the same as the already existing constitution except that the wording
would be different. The plaintiff alleged that the words complained of were capable of
lowering his reputation in the estimate of reasonable right-thinking member of society.
The defendant on the other hand claimed that the article constituted a fair comment on a
matter of public interest;
The Court found inter alia that;
•Since the clamour for constitutional change had reached fever high round about 1997,
anyone perceived to be working or being used to derail the constitutional review process
would in such circumstances be viewed suspiciously.
•A reasonable man reading through the article would come to the conclusion that the
plaintiff was a man without the interest of Kenya at heart who had ganged up with a
clique of lawyers to forestall the review of the constitution. That impression certainly
lowered his esteem
•The plaintiff was awarded kshs.1, 000,000 in general damages.

5. Chirau Mwakwere Vs Royal Media Services Limited

The plaintiff sought general, aggravated and exemplary damages for libel from the
defendant, together with an order for injunction restraining the defendant from further
publishing the alleged defamatory words complained of plus cost and interest.
The plaintiff claims that on or about 16th December 2004 the defendant falsely produced,
recorded, broadcasted, aired and published the following words of and concerning him in
its citizen Radio station in Kiswahili ,which report when translated would be as followed;
“Today listener I shall take you up to the street of prostitution of Koinange here in
Nairobi where it is alleged that a minister, an assistant minister, Member of Parliament
and businessmen were caught pants down with prostitutes. Investigation which were done
involves the cabinet minister of Lobour, Ali Charau Mwakwere who is also the member
of parliament of Matuga, Assistant minister Mwangi Kiunjuri who is also the Member of
Parliament for Laikipia and the Member of Parliament for Gem, Jakoyo Midiwo. The
astonishing fact is that even before their names were mentioned these honorable ministers
ran to the broadcasting stations to defend themselves with threats of taking broadcasting
stations to court reason being that the report which was given showed that they were the
ones.
The right course of action to take is that the members of parliament to be taken to court,
those who are cabinet ministers Kiunjuri and Mwakwere to be sacked and at once to be
removed from the committees dealing with AIDS at their representations in parliament.
…..the truth of this query must be told because people of Laikipia East, Gem and Matuga
elected people to represent them in parliament and not go to Koinange Street running
after girls. In a further perpetuation of the defamatory statement referred to above, the
defendant published the following words in English news feature:
“Investigation by citizen radio and TV have unearthed unconfirmed reports that the
Minister who were found by police soliciting sex on Koinange Street were Ali
Mwakwere of the Ministry of Labour, Assistant Minister Kiunjuri and Legislator Jakoyo
Midiwo. Efforts to reach Ali Mwakwere were unsuccessful but Mwangi Kiunjuri issued
a statement this afternoon denying the allegations. Legislator Midiwo could not be
reached to confirm or deny our story. It is not clear whether the police will take further
action against them”.
The court dismissed the defendant’s witness who sought to show that the statements were
true. The court said that because the defence of justification was pleaded, the defence
cannot be allowed to lead evidence on that line.
The court dismissed the defence of qualified privilege which the defence attempted to
rely on. It was the defendant’s case that because the plaintiff was a public figure, it was
entitled to publish such statements.
The court also dismissed the defence of fair comment and stated “I accept that a person in
the public arena is a target of comment and can be criticized more openly than a private
individual. The comment must however be reasonable and fair and does not extend to
making untrue statements about a public figure which impute grave wrongdoing to him
or her of which they are innocent”.
The judge awarded the sum of Kshs. 1,000,000 in general damages to vindicate the
plaintiff’s reputation to the world and to compensate for the injury to the feelings. The
court also awarded Kshs1,000,000 as exemplary damages and Kshs1,000,000 as
aggravated damages.
6. Joseph Wasambo vs the Standard Limited
This is a defamation case arising from two articles published in the East African Standard
of 17th and 18th October, 1999. The offending words are reproduced in paragraphs 4 and
5 of the Plaintiff’s plaint as follows:
“On or about the 17th of October 1999 the defendant, in its issue of the East African
Standard falsely and maliciously wrote and published and further caused to be written
and published to the general public at large of and concerning the plaintiff an article
entitled “Kisumu State Lodge Land Grabbed”, which was concerning the plaintiff in the
words following:
“A plot which is reserved as part of the Kisumu State Lodge has been allocated to a
senior Ministry of Education official, The Standard has learnt. The land, parcel number
409 which is approximately 1.134 hectares in Block 7 was allocated to the Nyanza
Provincial Education Officer (PDE), Roselyn Onyuka and one Joseph Rading Wasambo
on September 1st. However, the same plot has been allocated to Multiline Millers
Limited of Eldoret and a Certificate of Lease title number, Kisumu Municipality/Block
7/409 issued.
“Onyuka’s Certificate of Lease title also has the same information. The allocation was
revealed by Citizen Coalition against Corruption (CCAC) and the Futa Magendo Group
both Civil Society Groups committed to eradication of corruption. The group officials,
Dave Ochieng (Chairman) a lecturer at Maseno University, Billy Ng’ong’a (secretary)
and Gai Moja (Futa Magendo), presented the documents to the press in Kisumu.”
The Plaintiff also complained of another article titled “Grabber use Kisumu State Lodge
to secure KShs. 5m Barclays Loan” which was concerning the Plaintiff.”
The plaintiff took exception to the two articles. He maintained that the words and/or
statements in their natural and ordinary meaning were understood to mean of and
concerning the plaintiff, inter alia: - that he is a liar and a conman and thrives on
unworthiness; that he is a grabber of public utility land and is unethical and
unscrupulous…”
In this case, the newspaper offered an apology. In the light of this, the court stated:
“I also take cognizance of the fact that the defendant owned up to its error of publishing
the two articles without a basis and duly apologised and published a correction. The
apology constitutes admission of wrong-doing and counts towards mitigation but does
not amount to full atonement for the wrong done. It must be appreciated that damaging
another’s reputation is a serious matter indeed.
As was stated by the Court of Appeal of England in John –vs- MGN Ltd [1996] 2 ALL
ER 35 (at page 47):
“The successful plaintiff in a defamation action is entitled to recover, as general
compensatory damages, such as will compensate him for the wrong he has suffered. The
sum must compensate him for the damage done to his reputation; vindicate his own good
name; and take account of the distress, hurt and humiliation which the defamatory
publication has caused.”
I accept the above principles as a good guide in assessment of damages.”
The judge noted that these were allegations of a criminal nature and in particular,
“obtaining the subject land and/or securing deposits in respect thereof by false pretences
and fraudulently”. This is a criminal offence attracting 3 years imprisonment under S.
313 of the Penal Code. As per section 16A of the Defamation Act, the minimum award is
Kshs400,000.
The Plaintiff was awarded Kshs1,200,000 as general damages and Ksh250,000 as
aggravated damages.
8. Machira Vs East Africa Standard
The suit was initiated by the plaintiff, an advocate of the High Court of Kenya, against
The Standard Ltd, which is the proprietor and publisher of a newspaper called the East
African Standard, and an editor of that paper, one Kamau Kanyanga, in which the
plaintiff complains that by certain specified pictures and statement in the newspaper
which has a very large and influential circulation, the defendant defamed the plaintiff in
various pictures and written matter, complain of are contained in a number of cuttings of
the newspaper of Friday November 10th 1995, beginning on the front page and
continuing on page 7.
Both on the front page and page 7of the newspaper in question are pictures admittedly of
the plaintiff; a woman and a group of other person, all different in pictures casting with
an apparent effort to maximize conspicuity. As if the publishers felt the large sized near
full –page pictures might not catch eyes of everyone they run and juxtapositioned
screaming caption and headline of an interpretive kind to help a reader who might
otherwise miss to understand the pictures the way publishers wished to put across, so
with the front page picture their what appears in exclamatory matter “GOT YOU!” as the
heading of a story which open with some of the words complain of in this suit ,namely :
“An angry collar a High Court advocate yesterday –in a punch –up that brought
proceeding to a standstill. The fight started in the corridors”
The story continues to page 7where again there are not less than five pictures of the
plaintiff, the woman and other persons, all under a large headline “LEGAL TUSSLE “,
with a prominent heading “Punch-up brings High Court to a standstill”, under which a
reader might not see for himself in a picture is again interpreted for him and told to him
by the publisher:
“The excited crowds were clearly on mama Njoroge’s side. Prison warders unaware of
what was happening, locked up the High Court exit leaving the two protagonists fighting
in a corner. Finally a court orderly escorted the two protagonists to Kenyatta International
Conference Centre Police Post. There the lawyer thanked the orderly for saving him from
the angry crowd.”
It is said that the statements complained of were published, notwithstanding the fact that
on the evening of November 9, 1995, the defendants had been appraised of the true
factual position and had been furnished with documents to verify the true position
showing a contrary factual position to what defendants were portraying of the matter
which was false, malicious and defamatory of the plaintiff in his personal and
professional standing. The particulars of malice and spite are set out in the amended
plaint, paragraph 5; and the plaintiff says that by reason of all or any of those things, his
reputation and integrity were destroyed.
In particular, the plaintiff highlighted that the defendants chose to publish incorrect and
misleading matter despite having been briefed and furnished with the necessary
documents and the true position of the matter; the defendants knew well that the plaintiff
did not fight or exchange blows with the lady and that although he was assaulted and
battered, the plaintiff kept cool in a dignified manner, not retaliating at all; that members
of the public sympathized with the plaintiff throughout the ordeal and urged the lady to
resort to law if she had a grievance, and not to take the law in her own hands, and they
were not impressed by her assault in plaintiff; that there was no legal tussle and there was
no court case between the plaintiff and the lady; that the plaintiff did not owe any money
to the lady, and this fact was communicated to the defendants a night before the
publication of the matter complained of; that there was no punch-up but only an assault
and battery on the plaintiff who innocently kept his calm, not retaliating; that there was
no standstill of high court proceedings; that the pictures published tell a different story
from what the defendants wrote and published.
In this case, the court dismissed the defence filed therein and the court proceeded to find
that it was a sham with the intention of delaying of the fair trial of the action.
The court went ahead to observe, “obviously no trial and oral evidence or documentary
evidence is required to show that there was a “punch-up” in the context of the story in
question, … the word punch-up having then ordinary meaning of a bout of fighting with
fists.”
Further, the court found that the defendant’s story and misinterpretation of the
photographs are all misleading and misrepresent to the public what did occur –no fight,
no punch-up.
The court further observed, this eye-catching caption “GOT YOU” which was not stated
as a quotation of words spoken by either of the persons in the picture. These were an
interpretation by the defendants of what they considered should be the meaning of the
photograph accompanying those words…Ordinarily these are words employed when one
is caught up with after he has been eluding justice, or after he has been getting away with
wrong doing.
The court took exception with the words portraying the court as having come to a
standstill. Whereof it stated “It is not pleaded anywhere that Judges and Magistrates
adjourned the court proceedings to go and watch “bemused” what was happening in the
court corridors.”
The court found, in the absence of pleaded actual material, there is nothing from which
one can reasonably say that those words were a fair comment on anything, or that they
were words on which the public had an interest. The court further observed; what is
complained of are not comment but statements of alleged facts; nor are they inferences of
fact from other facts referred to. Again, there were no factual basis for a comment. A
comment must be objectively fair in the sense that an honest or fair-minded person could
hold that view. Comment must be based on true facts which warrant the comment.
On the defence of justification, the court said: A defendant is permitted to plead
justification only where it is clear that the allegations he made and are complained of are
true in fact or substantially so. He cannot be allowed to set out a version of a statement
which differs materially from that complained of and justify that version. For him to rely
on justification he must accept the plaintiff’s version of the statement, or a statement
which is in substance identical with the plaintiff’s version.
Further, the terminologically, “justification” as used in the law of defamation, means
“truth”. The defence calls for the defendant demonstrating that the defamatory imputation
is true. He cannot get away with it by saying that he believed that the matter complained
of was true. In the instant case the defendants are simply seeking to go to the trial to tell
the court that they believed that what they saw along the court corridors was a punch-up,
and that the people they saw near there constituted the entire High Court work force and
therefore court proceedings everywhere at the High Court must have come to a standstill.
Do we need to go the trial to see the falsehood of these things? No, we do not have to. It
is already glaring to us in the face. There is not even substantial justification likely to be
proved. I do find any pleaded allegation by the defendants which if proved will meet the
sting and charge.
Accordingly, the same was struck out.
It is noteworthy that in dismissing the defence filed therein, the court also considered the
case of J P Machira v Wangethi Mwangi and Nation Newspapers, CA Civ Appeal 179 of
1997, in which case the Court of Appeal had already found and held in very similar
(almost identical) circumstances, that the defendants therein who had published similar
matter as those complained of herein, were liable for the libels published concerning this
very plaintiff.

LOSS AND QUANTUM OF DAMAGES

In the English Court of Appeal decision in the case of John v MG Ltd the Court held:-
“The successful plaintiff in a defamation action is entitled to recover, the general
compensatory damages such sum as will compensate him for the wrong he has suffered.
That must compensate him for damages to his reputation, vindicate his 8
name, and taken account of the distress, hurt and humiliation which the defamatory
publication caused........
Exemplary damages on the other hand had gone beyond compensation and are meant to
“punish” the defendant. Aggravated damages will be ordered against a defendant who
acts out of improper motive e.g. where it is attracted by malice; insistence on a flurry
defence of justification or failure to apologize.”

PERSONS CAPABLE OF DEFAMATION

Defamation of a deceased person
It is not a tort to defame a deceased person as the plaintiff in a suit for defamation must
prove that the offending words referred to him
If, however, a statement though relating to a deceased person affects the reputation of the
plaintiff he may maintain an action; e.g. a statement alleging that (the deceased mother of
the plaintiff) was a prostitute.
Reputation is regarded as so personal that an action for defamation does not survive for
the benefit of the plaintiff’s estate.

Defamation of a company/corporation
It is settled law that like a natural person, a company/corporation can maintain an action
for defamation.
The defamation shall be-
 Actionable per se (that is, without proof of special damage) if the statement in
question is made to reflect on and injure its good will, property, trade or
business or its character for stability, soundness and fair dealing. See Safaricom
Versus Robert Alai or Cyprian Nyakundi
 Not actionable per se, if the statement in question refers to the personal
character or reputation of its officers....

Thus, a trading company may complain of defamation such as imputations which are
false and in the nature of insolvency, mismanagement, improper/unfair/dishonest conduct
of its everyday affairs.

Defamation of a class of persons

A member of the class must prove that the defamatory words refer to him; for example, a
libel relating to a firm of partners or trustees of a trust. Each partner may have a cause of
action if the defamatory statement can be reasonable understood to refer to every
member.
Extrinsic evidence is admissible to show that some people perhaps with knowledge of
special facts thought the statement refer to the plaintiff.
In Knuffer v London Newspaper ltd (1944) AC 116 the defendant published an article
about a Russian political party which had a British branch consisting of 24 members led
by the plaintiff. The party was an international organization with several thousand
members and the article referred mainly to its activities in America and France. The
plaintiff alleged that it was particularly applicable to Britain and since the libel concerned
the person responsible for the politics of the party then it personally affected him.
Rejecting this condition, the House of Lord laid down the general rule that where a class
of persons is defamed no one person can succeed unless he proves that the defamatory
statement;-
a) Was capable of referring to him
b) Was in fact understood to refer to him

In the present case the defendant failed.

During judgment Lord Porter said:-
“The size of the class, the generality of the charge, and the extravagance of the accusation
may well all the elements to be taken into consideration, but none of them is conclusive.
Each must be considered according to its own circumstances.”
However in another case Le Fanu vs Malcom son (1848), a general statement or reference
to a class may be actionable by a particular plaintiff if the verse in the circumstances can
be taken to refer to him.
In this case a local newspaper published a letter denouncing alleged cruelty with which
the factory operatives were treated. The verdict of the ruling awarded damages to owners
of the factory by the House of Lords since there were special circumstances which enable
one to identify the plaintiff’s factory.

Charges against a public person

The same principle is applicable even when the interest of the defendant is merely the
general interest which he possess in common with all other in the honest and efficient
purpose by the public officials of the duties entrust to them.
Thus any member of the public may make charges of misconduct against any public
servant and the communication will be privileged (Harrison vs. Bush). But the charge
must be made to the proper person. That is to say to those who have a corresponding
interest. So a constituent may write to his member of parliament asking for his assistance
to bring to the notice of the appropriate minister or other person a complaint of improper
conduct on the part of the public officer acting in constituency in relation to his office.
But a communication to the wrong person e.g. a publication of the statement to the world
at large in the newspaper or otherwise is an excess of privilege and the privilege will
thereby be lost.
On the other hand, the Defamation Act provides that a defamatory statement published by
or on behalf of a candidate in any election to a local authority or to parliament shall not
be deemed to be published in privileged occasions on the ground that it is material to the
question in issue in the election whether or not the person by who its published is
qualified to vote at the election.

Malice
The defence of qualified privilege is not availed if the defendant is actuated by malice.
Malice means the presence of an improper or ill will though a desire to injure the plaintiff
will usually be…

Failure to inquire in the facts is a fact from which inference of malice may be properly
drawn. Additionally to the above cited case. Odunga J held in Phineas Nyagah v Gitobu
Imanyara [2013] eKLR that: -
“Evidence of malice may be found in the publication itself if the language used is utterly
beyond or disproportionate to the facts. That may lead to an inference of
malice. .....Malice may also be inferred from the relations between the parties.... The
failure to inquire in the facts is a fact from which inference of malice may properly be
drawn.”
As regards the documents alleged to have been obtained from the police, DW1 did not
call the police or the Sultan to corroborate his evidence. One of the letters relied upon by
the Defendants was not even signed which raises credibility as to its origin.
The Plaintiff submits that accordingly, the documents and his evidence cannot be used to
sustain the defence of the defamatory actions by the Defendants.
The Plaintiff submits that the publication was a single sourced the story and failed to
make any attempts to seek and comments and hear the side of the story of the Plaintiff.
This confirms that the Defendants intentionally failed to adhere to the provisions of
Regulation 2 of the Code of Conduct for the Practise of Journalism under the Media Act
and were reckless in nature.

Newspaper Libel
Newspapers and magazines (whether in print or online) are more actively involved in the
day-to-day dissemination of information.
Journalists however do not have any special right to make unfair comments or
imputations upon a person’s character or his profession or calling. They do not have the
right to comment fairly and severely something interests the public does not imply that it
is in public interest.
Liability devolves on the proprietor, editor, printer and publisher, who may be sued either
separately or together.
The proprietor is liable for any libel which appears in its columns even though the
publication is made in his absence, without his knowledge or even the contrary to his
instructions.
Distributors of newspapers/magazines and agents are not, by their mere act of
distribution, liable, as they are not aware of its contents, as one may by commonsense
presume.

Explaining defamation
The defamatory words or action have to be wrongful to be challenged in the court of law.
But before that journalist should remember the basic definition of defamation outlined the
following.
1. Any action

Conversation of a journalist before his colleagues, or any of his act or action, which have
bearing on the reputation of another person all may constitute defamation. This may also
include certain questions in a press conference not phrased in temperate language or
physical act or gesture that may bring disrepute to another person.

2. False statements

The condition of being wrongful is basic one. You have to be factually as well as legally
incorrect to be wrongful. Once the defamation suit is filed the court of law determines the
truthfulness of a statement. At times false statement published in a section of the press go
unnoticed for many reasons facts and figures and prove that the statement made or
published is false one. To cater for such a possibility journalist must get their information
verified through different sources. For instance, while writing an article he should be sure
about the authenticity of the facts and figures he is producing to substantiate his view on
a subject. This can be done either by acquiring relevant documents or cross checking the
data through other sources.
Another example illustrates a press conference where a politician labels allegation against
his rival. Now the allegation may be a false one.
The reporter thus has to cross check and verify the claims made by the politician before
they report the event. Mere attribution in such a case will not work, especially if the event
was aired or published for wider consumption. Doing so would bring responsibility to the
broadcaster or publisher and even the reporter before it goes into printing.

3. False representation

Unpublished conversation can be an example of representation. This may include a

representation by a subordinate before a higher authority against another of his superiors.
This again is an issue of representing the facts. False representation may also include a
journalist introducing himself with false or wrong identity, like claiming to be
representing someone with intention to in fact bring a bad name to that someone through
certain actions. Again a false representation of facts against another person will not be
reported, published or broadcast unless the media organization accepts the partial
responsibility of propagating the same at a wider scale.

4. Verbal

The person accused of making defamatory statement is described in law as the author.
In law, ‘author’ means the originator of the statement, who might have made the
statement verbally or writing through a press release or a journalist reporting the same.
There may be times when there is no written or recorded proof of a defamatory statement
made. The defamation suit can still be filled against any person, including journalist.
Journalists normally think that it is just what they publish which matters.
This is not so because even the words they utter in a private company carry legal
consequences. As stated earlier the defamation laws even though media focused are
basically applicable to all citizens, particularly those who are fond of leveling
unsubstantiated allegations in public and even in private. So a verbal statement made can
also invite defamatory suit on the basis of a witness who can tell the court that the same
statement had been made by one person against the other. This is important not just but
also about what they say in the company of others. This is important not just to avoid
legal prosecution but also to retain a degree of credibility and impartiality in the eyes of
public. The same holds good both for the print and broadcast media people, the print as
well the broadcast journalists.

5. In writing

This is the most important type of defamatory communication relating to anything in

written or published form. The published form includes even the broadcast that has gone
on air, a record of which is every radio station bound to keep. Once again beside the
published newspaper report published on written statements, on paper or now on email
too, also become primary evidence in a defamation suit.
In newspaper or even the broadcast news the choice of words that convey the crux of a
story as a headline or introduce a story as an intro becomes crucial and sometimes a
determining factors in a defamation case. For example to headline a corruption arrest by
saying “Mr A has been arrested for corruption” are two different things. The first
proposition, if headlined, can invite a defamation suit, particularly if later on it is found
by a court that Mr-A was innocent. So the second proposition of saying “Mr-A has been
arrested for alleged corruption” is a safe game to play. Similar approach should be
followed in the main body of the story as well.
In such a case, however, it is not just the reporter, who will be questioned as a respondent
but also the desk editor and even the editor who approves the headlines. Similar care
should be taken even while quoting allegations of let’s say, one politician against the
other and then the judgments of the court in such corruption cases. The corruption cases
before the court even when decided by a lower court, are considered to be a matter
“pending before court” or a sub judice matter, wherein the accused shall be allowed to
exhaust all forums of appeal up to the Supreme Court, and the review options, before he
can be reported by the media as someone “convicted for corruption “Before that happens
the person will remain “an accused” for the purpose of reporting. However, the fact of his
being convicted by the lower court and that he has the right to appeal can be mentioned.
Therefore, while reporting on such court cases due care has to be taken to avoid a
defamation suit being filed by the persons who are accused in corruption cases.

6. Visual

Visual medium is the most powerful of all in its impact and influence on the minds of
people and therefore, its potential of doing a greater damage to a defamed person if due
care is not taken in the choice of images. This relates to both television and print where
visuals or still photographs form an integral part of news reports and articles. The
caricatures and cartoons of individuals also say a thousand words, which at times, even a
lengthy and most well written article cannot do.
A camera does not lie, but a times it only shows you a part of the whole picture and
sometimes just one side of the whole story. Indeed, photographers crave for rare scenes
but when such scenes are published or telecast out of context, they may become
misleading and defamatory. That is where the words take over from images to tell the
people the complete story, the context, before they go away with a wrong impression
about the people who are subjects of the visuals. It is here that the caption of a
photograph becomes important as it must eliminate the possibility of a picture carrying
misleading impression.
The reporter should also be careful about the type of activities of the people being filmed.
For instance showing a film wherein a protestor is carrying abusive slogans against a
person or making derogatory sings with hands for a particular person, all these will be
considered defamatory and the film may become a respondent in suit. Similarly any
sound funny or otherwise that will quickly remind people of a person being ridiculed or
insulted and therefore defamed, is also subject of the defamation proceedings.
These sounds may be of electronic devices, like distorting the sound of a person to
ridicule him. For instance, to turn a male sound into female one or vice versa through
technical means, and the person who has been ridiculed considers it derogatory, a suit
may lie.
Similarly, the caricatures of important personalities, conveying a political satire, should
not cross the limits of decency and ensure that their physical and personal disabilities do
not become a matter of ridicule in public. This however does not mean that prominent
political personalities cannot be portrayed in a lighter vein reflecting the existing political
controversies. As a matter of fact the cartoons and caricatures are only effective when
their subjects are prominent public faces and personalities, other than the caricatures of
ordinary faces representing common people.

7. Reputation of person

This is the most basic element of a defamation suit. Every citizen has the right to good
name that is known as reputation. In legal sense the reputation of a person is not just
about what the person is but all about how he is looked at by the public at large. This also
gives rise to the question about the extent a defamatory statement or action has changed
the views of public about that person. Therefore, once a defamation suit is filed the court
does determine through evidence the level and kind of reputation the plaintiff enjoys and
then the extent of damage done to it.
This does not however mean that journalist cannot do investigative reporting about well-
reputed people. It means that extra care should be taken and maximum evidence should
be collected before reporting a story that may damage, though rightfully, the reputation of
a person. In fact, in calculating and, at times, awarding the damages, the reputation of a
person becomes an important factor. Like more famous defamed person is greater is the
amount claimed in damages and likely to be decreed.

8. Injury

Injury can be defined as the damage done to the reputation of a person on the basis of
which the court of law ascertains the amount of damages to be paid by the accused, if
found guilty.
While even an ordinary citizen can cause injury to somebody’s reputation through private
conversation or a speech before a limited audience, it is always a journalist who may
have the power to cause greater damage because he is the one who, by publishing it,
multiplies the damage by spreading the news to a far greater audience, though as a duty,
through his media organisation.
The extent of injury caused is normal considered to be directly proportional both to the
existing level of fame the plaintiff enjoys, and the number of people that story has the
potential of reaching out to. So the bigger the media organization, and bigger the name of
celebrity, the bigger can be the amount of damages decreed, once the defamation is
established.
However, public figures, like politicians and actors, are also to the a greater extent,
considered being the public property and, therefore, liable to face public scrutiny in their
lives.
9. Publication /Broadcast
This condition relates to media organizations wherein the statement alleged to be
defamatory may also have to be published in the newspaper or broadcast before it can be
produced as evidence in court of law.
Under the law the publication means the communication of the words to at least one
person other than the person defamed. This includes a newspaper or broadcast through
the internet or other media that will be explained
The law defines a newspaper as a paper containing:
a) Public news or intelligence
a) Occurrences
b) Remarks or observations
c) Advertisements

The above contents have to be printed for distribution to the public. The newspapers have
to be published periodically. This also includes such other periodical works as the
government may, by notification in the official Gazette, declare to be newspaper.
Under the law it is not just the reporter but also the publisher or the editor who shares the
responsibility of having caused defamation of a person, if the court finds it to have taken
place. In case of a radio station the licensee, the producers or the editors will share similar
responsibility.
The law defines an editor as a person who has the power to allow or stop the publication
or broadcast of statement, someone having editorial or equivalent responsibility to take
the decision to publish or circulate it.
The law mentions author, editor, proprietor or publisher of a newspaper, the owner of a
broadcasting station, an officer, servant or employee of the newspaper or broadcasting
station as possible respondents in a defamation suit.
The law defines a publisher as someone who is a commercial publisher and it is his
business to issue material to the public and who issues material containing a defamatory
statement in the course of that business.
Under the law, act of broadcasting a defamatory statement will be deemed to have been
resorted to, if carried out through the following methods
I. Through signs
II. Signals
III. Pictures
IV. Sound, including those of electronic devices

The above-mentioned actions, if conveyed and received by the public through the
following media can, become a subject of the defamation suit.
 A form of wireless radio-electric communication
  Radiotelegraph
 Radiotelephone
 Cables
 Computer
 Wires
 Fiber-optic linkages
 Laser

A statement once published or broadcast will be considered to have caused the damages
to the person filling the suit. The publication of defamatory matter is an actionable wrong
even without proof of any special damage to the person defamed. Defamation once
proved, the damage shall be presumed to have been caused.

10). Circulation
If you know that the contents of a newspaper or a broadcast programme are false and
defamatory but you go ahead and distribute the same, then you are liable to be charged
with defamation. In such a situation even a hawker distributing a newspaper with a false
story can be made respondent in a defamation suit but that hawker can always prove his
ignorance on the grounds of his being uneducated and unable to read and write. The fact
that the hawker is not supposed to read all the newspaper before distributing them is also
a valid defence.
In fact the circulation of a newspaper is also factor in determining by the court of the
extent of damage done to a defamed person. Basically, the circulation factor comes into
play if a person is privately distributing a hand-written or printed pamphlet knowing fully
well that it contains defamatory material similarly, a printer can also be charged of
defamation if he is printing the same material, with full knowledge of its content.

Necessary parties to defamation suit

Journalist should also know as to who are the people/players in a defamation suit so that
they ensure that all sides express their views for a just conclusion to be reached by a court
of law. The necessary parties to a defamation suit are as follows.
1. Plaintiff, who moves the court claiming to have been defamed.
2. Defendants, which may include the following people:
a. The person who makes the disputed statement.
b. The reporter who reports the same.
c. The editor who is alleged to have either approved or ignored it.
d. The publisher or the licensee of radio station.

Starting off with the plaintiff, a court cannot take notice of a defamatory statement unless
the person defamed moves the court against it. Similarly, no person can file a defamation
suit on behalf of the person originally defamed, who can however authorize anyone to do
so.
As regards the defendants, they are severally or jointly responsible for the defamatory
statement. For example, a politician who makes a speech filled with allegations against
his political rival has a responsibility as well as the reporter who reports the same without
verifying the allegations, and the editor who approves the story for publication and
ultimately the publisher or the radio license who employes them.
In the absence of the above parties, the defamation case is not maintainable. At times it is
up to the plaintiff to decide if he wants to make one of or all of the above defendants as
party but then the court can summon anyone which it seems as a necessary party to the
suit.

CONTEMPT OF COURT LAW

This is the offence of being disobedient to or disrespectful of a court of law and its

officers.
According to online dictionary5 contempt is “willful disobedience or open disrespect of
the orders, authority, or dignity of a court or judge acting in a judicial capacity by
disruptive language or conduct or by failure to obey the court's orders”.
Contempt of court can be termed as defamation of the courts. The law on contempt gives
judges the right to file a defamation suit in cases where they cannot move contempt
charges. The law on contempt of court has been introduced to maintain the sanctity of the
judicial system where disputes are supposed to be resolved in accordance with the
constitution and the law. The contempt laws apply equally to citizens. The media though
is more vulnerable to it than the ordinary citizens.

Contempt of court occurs when one;

• Disobeys or disregards a court order
• Disobeys or disregards direction or process of court
• Willful breaches undertaking
• Causes disrespect or disrepute
• Interferes or prejudices judicial proceedings
• Scandalizes a judge
• Disturbs decorum of court
There are many ways a superior court (High Court, Court of Appeal and Supreme Court)
can react to the instance of a criminal contempt in a subordinate court.
As opposed to the civil contempt where the same is brought to the notice of a judge only
by a complainant, a criminal contempt can be dealt by a superior court as follows;
1. A court taking action on its own after coming across evidence or information
through press. In legal terms this court action is called suo moto 6. For example,
information about a fistfight or insulting a judge of a lower court once conveyed to the
superior court by any means can invite suo moto action. For a journalist it means that his

5
Merriam-Webster
https://www.merriam-webster.com/dictionary/contempt
6
Suo motu, meaning "on its own motion," is a Latin legal term, approximately equivalent to the
term sua sponte. For example, it is used where a government agency acts on its own cognizance,
as in "the Commission took suo motu control over the matter."
story might invite a suo moto by a judge. This is especially so if a story influences or has
the potential to influence the court proceeding in terms of the definition of criminal
contempt. The journalist too can then be subjected to the criminal contempt of court
charges. For example publishing statement of a witness, which is contrary to what he had
stated before the court.
2. There are other sources of information on the basis of which a superior court may
take action. For example any person connected to the proceeding in which the alleged
contempt has been committed can also bring it to the notice of the court.
3. The DPP can also request a superior court to take action against person accused of the
criminal contempt of court.

The above circumstances may invoke a variety of charges as per the latest contempt law.
These are:
• Civil contempt
• Criminal contempt
• Judicial contempt

Civil contempt
Civil contempt means intentionally disobeying any kind of court orders or directions. A
court order normally comes in the form of a judgment. If the losing party does not obey
the court’s order the winning group can then inform the court that its orders are not being
obeyed or implemented.
In turn the court can initiate the contempt of court proceeding. Even before the final
judgment, the court can issue an interim order or direction to the government or any of
the parties involved the interim order on direction has to be implemented and enforced in
the letter and spirit.
The court can order journalists not to publish reports carrying allegations against a
person, or about a case pending a final verdict. This includes any portion of the court
proceedings. The court may direct a newspaper or any publication in writing or verbally
to abstain from publishing or carrying certain reports. Such a direction is known as “gag
order” while doing so the court presumes that in the case a news report gets published, it
will either harm the legitimate interest of the party or prejudice the process of law or a
matter pending before the court. Journalist is required under this law to show respect to
the court less they are subject to the civil contempt proceedings.
Similarly, a court can also order a journalist to disclose his or her source of information
in relation to particular reports. International precedents show that the journalists have
often refused to obey such court orders even if they had spent a few months behind bars
on contempt of court charges.
The superior courts can issue a writ (orders issued through exercise of jurisdiction)
against any person, publisher or the government. These orders or directions have to be
implemented under the law. Similarly journalists too can invoke courts contempt
jurisdiction to protect their rights. For example, if an order benefiting a journalist or a
newspaper is not being implemented, the court can then be requested to invoke its
jurisdiction under the contempt law against the person or organization which is defying
the orders.
A journalist must make a truthful statement or a promise that he is sure of keeping.
Giving a false statement or failure to fulfill promises will also invite civil contempt of
court charges. The court process is also to be respected like a court order. The court
process means any action being undertaken by the court officials as part of the hearing,
like sending of summons. Refusal to receive court summons or refusal to appear before
the court after receiving them without cogent reason can also trigger contempt of court
proceedings.

Action against civil contempt of court

The court can initiate proceeding for civil contempt on its own. However, as stated
earlier, any party aggrieved by non-implementation of a court order can inform the court
through an application, the contempt of court petition, that its orders are being avoided.

Criminal contempt
Criminal contempt involves physical action that insults or humiliates a judge in his face.
It includes act that may obstruct or hinder the administration of justice, like physically
resisting the implementation of court order.
Even an act not intended to obstruct the administration of justice may also invoke
criminal contempt. As per the law the criminal contempt will hold if a person or a
journalist:
1) Attempts to influence a witness, or proposed witness either by intimidation or
improper inducement, not to give evidence, or not to tell the truth in any legal
proceeding;
2) Offers an improper inducement or attempts to intimidate a judge, in order to
secure a favorable verdict in any legal proceeding;
3) Commits any other act with intent to divert the course of justice. Influencing a
witness means a journalist himself is a defendant, the private. Similarly, even while
reporting a case as a journalist, he should not ask a witness, or a likely witness of the
case, to give a false statement for publication to influence the court proceedings. This
also means that a journalist must not offer any monetary benefits to a witness or threaten
to damage his reputation, if he did or not give a particular statement before the court or
any court official as part of any legal proceedings.
Similarly, judges should not be approached in private about a case. Approaching a judge
in private about a case pending before him may also amount to criminal contempt of
court. Approaching a judge means contacting him in person or on telephone and offering
him favors in cash or kind in return for a particular outcome of a case before him. This
may amount to intimidating a judge. A journalist may also intimidate a judge through his
stories about court proceeding of a case or the judge himself.
Committing any other act meant to divert the course of justice is also liable to the
criminal contempt charges. This may also include any violent gesture towards the judge
of that court.
Giving misleading information either in person or through newspaper to influence the
investigating process in a criminal case may also invite criminal contempt of court
charges.

Action against criminal contempt

Every superior court award punishment in case contempt is committed in relation to it.
High courts also have the power to punish a criminal contempt committed in relation to
any court subordinate to it. Similarly, subordinate courts are given the power to hear a
case of criminal contempt relating to the courts below them. In such a situation a high
court cannot proceed on statement of the lawyer on a judgment. For example a lawyer
who has lost the case may criticize the judgment in terms of its merits, laws and
consequence but should never attribute personal motives to the judge who authored the
judgment. He can always reiterate his right to appeal against it. A reporter should also
remember that in case the lawyer does attribute a particular judgment to personal motives
then he cannot publish this unless he is ready to face contempt charges.

Judicial contempt of court

The contempt of court law defines judicial contempt as scandalizing a court, which
includes personalized criticism of a judge while holding office.
No one is allowed to criticize a judge with reference to his personal life and conduct.
Personalised criticism of a specific judge means imputing improper motives to a judge
while criticizing his judgment in a case; like alleging that the judge gained personal
benefits, financial or other, through his judgment. In case a true statement is made, the
same must be in good faith and in temperate language.

Action against judicial contempt

Like the criminal contempt a judicial contempt is also within the purview of superior
courts. A superior court may take action in case of a judicial contempt on its own or on
information laid before it by a person. Any person laying false information in this regard
will himself be charged with the contempt of court.
A judge in relation to whom a judicial contempt case is initiated will not hear the same
case unless he is Chief Justice. Such proceedings shall be referred to the senior most
judges (next to the chief justice), and available for disposal.
A journalist should note that no proceeding for judicial contempt should be initiated after
the expiry of one year as per the law. This means that a judge cannot open a case of
judicial contempt one year after the same is said to have been committed.
Contempt in face of court
In case of a contempt committed in the face of court, it may cause the
contemnor/offender to be detained in custody and proceeded against in a following
manner;
1. In all cases of a contempt committed in the face of court the judge shall pass an order
in open court
2. Recording separately what was said or done by the accused person
3. Judge shall immediately proceed against the offender or may refer the matter to the
Chief Justice for hearing.
4. Judge may decide the case by himself or refer the same to another judge

Defence against contempt charges

Although the contempt law is open to selective application and interpretations, it provides
various protections to the person accused of contempt of court. These protections, if
invoked intelligently by the journalist or their lawyers, are good defences in such cases.

Following are protection and defenses made available to the journalists in the contempt
law;

1. Fair comment
In an article or news report a fair and healthy comment on a point involving judgment of
public importance is no contempt of court. This however is conditional to whether the
judgment being commented on has been decided and is no longer pending.
The law defines pending proceeding as those, which have been instituted in a court of law
until finally decided. The final decision means decision taken by the Superior Court in
the case, which is normally the Supreme Court where too the review jurisdiction is also to
be exhausted. In case of no appeal is being made by a party, the period of limitation
available for filling appeals must then expire before the same is to be commented on.
This does not mean that a journalist cannot comment or write about a judgment of the
lower court. He however is required to mention that the same might be taken to higher
courts in appeal.
The “fair comment” on which the journalist normally relies on has also to be phrased in a
temperate language and the integrity and impartially of a judge is not to be questioned.
This means no news report or article should be phrased in abusive language or carry
allegation of corruption against a judge.
The right to fair comment is normally exercised by journalists who write articles,
editorial or comments on a particular judgment or report be proved before the court of
law when the contempt case is initiated.
Under the law the only situation where allegation can be levelled against a judge is when
a formal complaint is being made before the competent authorities in good faith and in
temperate language.

2) Fair reporting
Truth is the best defence in defamation and contempt case. For instance, while reporting
court cases a journalist will not be charged of contempt if he has reported a fair account
of what has happened in a court of law. This includes observations or inquiries of a judge
during a case hearing.
However such observations ought to be put in a context to avoid being misleading and
therefore contemptuous. By fair account does not mean 100% accurate. Some
insignificant errors do not invite contempt charges. The errors that do make a significant
impact again invite charges. As long as the journalist gives a “substantially accurate
account” of what happened in the courtroom, they cannot be charged in contempt. The
question of intentional or unintentional mistake also comes up as an argument here. The
court cannot however issue such order verbally. The judge has to give reasons in writing
for doing so. The judge may, for reasons to be recorded in writing, in the interest of
justice prohibit the publication of information pertaining to legal proceedings. The
journalist must carefully listen to and read such orders and even stand up in courtroom to
resist such orders at the spot. The journalist can stand up and speak out inside the
courtroom if he thinks that the said order is not in “the interest of Justice”.
In case of rejection of request higher forum of appeal should be used by the media
organizations
Similarly, the parliamentary reporters cannot report on that part of the parliamentary
proceedings which has been expunged by the speakers of the national and county
assemblies, or the chairmen of senate or national assembly committees. The journalist
cannot produce in his defence such material, which had been expunged by the presiding
officer of the assembly. For example if the speaker of national assembly expunges an
exchange of abuse among the parliamentarians, the same abuses cannot be reported
verbatim. Still if a journalist does report it then he cannot rely truth as a defence- arguing
that the incident did actually take place. The law explicitly bars court to accept so
happening as evidence in defence of journalist. The same is true for court proceeding as
well, which once expunged by a judge cannot be reported and if these are reported then
no matter how factual the proceedings, these cannot be admissible as evidence before the
court. In both instances, the court may however order for admission of such evidence.
The term “court proceeding” extends to happening in institutions whose presiding
officers have been delegated with the judicial powers. These may include election
commissions, state commissions or tribunal, administrative courts among others.

3. Innocent publication
In case of the contempt charges arising out of a comment, story published, or programme
aired about a matter pending before a court, a journalist or broadcaster will not be
charged if he proves that he or she was unaware the matter was pending before a court.
The law says no person shall be guilty of contempt of court for making any statement, or
publishing any material, pertaining to any matter which forms the subject of pending
proceedings, if he was not aware of it.
It serves journalists the best to avoid publishing a statement or an argument on a subject,
which he knows is being debated in a court of law. Ignorance may be an excuse, but the
ignorance of law is not and therefore ignorance of contempt law is also no excuse.

4. Protected statement
Statements or comments regarding a court or judge can invite contempt of court charges.
However, in some cases such statements are protected. For instance an observation made
by a judge of High court or Court of Appeal in his judicial order will not constitute
contempt of court. The press can report such observation about a lower court judge if the
court under question has not expunged the same.
This observation might come as part of an order disposing of an appeal from a lower
court judgment. Superior courts such as High Court, Court of Appeal or Supreme Court
may make observation about the conduct of a judge in the lower court in disposing of an
appeal from the court. In similar situation a Court of Appeal judge can make observation
about a High Court judge.
The law clearly states that a true statement regarding conduct of a judge in connection
with the performance of his judicial function will not invite contempt charges. The
journalists though should know that he would be asked to prove the correctness of the
statement in case he reports any such instance.

5. Apology
This is the most important form of defence, which does provide an opportunity to escape
punishment (if the court decides to accept it). But it leaves a deep scar on the credibility
of the journalist in question and set a bad precedent for others. A journalist must report
the truth and be able to defend it. Apologizing would mean conceding unnecessary space
to the court and may lead to restriction on the basic rights to freedom of speech and
expression.
A journalist can at any stage of the case hearings submit an apology to the court. The
court, if satisfied that it is bona fide, may discharge him or remit his sense. The mere fact
that a journalist has contested the charges of contempt does not bar him from tendering
an apology. The court may however determine the bona fide of his apology on the
grounds other than his earlier refusal to accept the charges; that the journalist knowingly
and deliberately committed the contempt or has the history of similar acts and extending
apologies.
Therefore a journalist accused of contempt of court can, if he genuinely believes that he
has not committed the offence, contest the charges and this will not deprive him of his
right to apologize at any later stage of the case.
The court, on the ground that the accused had earlier refuted the charges, will not reject
such an apology.
In case of contempt having been committed, or alleged to have been committed, by a
media organization, the responsibility shall extend to that organization’s staff. In case of
a newspaper, besides the reporter, editor will also be directly or indirectly responsible for
the contempt of court and thus liable for damages done.

6. Journalistic confidentiality
Courts are empowered to order for the production of any print, visual or broadcast
evidence in a case of public importance. This evidence may include photographs or
footage of riots or violent demonstrations.
Ensuring confidentiality of a journalistic source of information is a valid excuse, though
not a powerful argument. Depending upon the circumstances the courts may or may not
buy this argument and order a journalist to disclose his source of particular information
published in any case. Refusal to regard such a court order can lead to contempt charges
against a journalist. Here too a journalist must weigh his option on the basis of a wider
public interest and his own safety. A refusal to divulge the source of information may be
based on the possibility of damage to public interest or possible threat to journalist’s own
life.
The truthfulness of information should be sufficient for a court to proceed with rather
than the source of information. In this situation divulging information may bring a bad
name to journalist at large. In case false information is deliberately passed on by a source,
it is up to the journalist to weigh the pros and cons of divulging his or her identity.
Confidentiality of a source is an ethical right of a journalist but not the one that he can
claim in the court of law

Reducing liability against defamation

1) Investigate the Facts
Even basic investigation can go a long way towards reducing defamation liability.
Publishing material as “fact” without doing any investigation by itself might amount to
reckless disregard for truth. To avoid liability, you don’t have to establish the truth of the
statement for all time; rather you should do enough to satisfy yourself that the facts
alleged probably through your reasonable judgment.
It has been held in the case of Godwin Wachira vs. Okoth [1977] eKLR, 24 that “failure
to enquire into the true facts…. Is a fact from which inference of malice is properly to be
drawn”.
Also in the case of J.P Macharia versus Nations Newspapers, aforementioned, the court
stated “Any evidence which shows that the defendant knows the statement was false or
did not care whether it be true or false, will be evidence of malice”.

2. Establish neutral criteria for publication

How do you decide when to publish a story? Establish some guidelines for publication
before you’re faced with a controversial situation. Again, the absence of any guidelines
for publication might be used as evidence of “reckless disregard for the truth”.
The guideline you use must be reasonable and should reflect the appropriate professional
standards of journalism.

3. Follow the criteria established by your media house

Failure to follow the criteria you establish might be viewed as recklessness. If you depart
from your guidelines, make sure you have a good reason to do so.

4. Don’t use unreliable sources

Use common sense. Be aware when people have obvious axes to grind. If an unreliable or
uncertain source presents you with a good story, take special care to verify or corroborate
the story before publication.

5. Retain Records of Your Investigation

In order to defeat a claim of recklessness, it is extremely helpful to document the facts
and procedures of the investigation. The main way of doing that is to preserve the notes,
records, and other material related to an investigation. Establish a general policy of
records ration. Keep the records until the statute of limitations on defamation runs out.

6. Confirm the identity of the subject of your article

Many defamation problems may be headed off by calling the subject of the article for
confirmation or denial. If the subject chooses to talk to you, you will get their side of the
story. Getting this information may cause you to modify the article you are about to run.
Certainly you can claim a good faith effort to determine the truth if you contact the
subject. If the subject refuses to speak with you, at the very minimum you’ve made a
good faith effort.
Attempting to contact helps avoid any identification problems about the subject. Many
names are quite common, and contacting the subject will confirm that you’re dealing with
the right person. At a minimum, you might try to get the subject to confirm the exact
spelling of their name which also act as a check on identity
Be skeptical of public records. Many public records also reflect the confusion of common
names, and the only real guarantee of accuracy in public records is the skill of the typist
who entered the data in the computer.

7. Use Quoted Material Whenever Possible

Often more controversial material should be presented in the form of a quotation. The
person being quoted takes the risk of a defamation claim. You should not use a quote if
you believe that quote is false, and you can’t knowingly or recklessly print false
information simply by putting the words in someone’s mouth.
Cite the person giving you the quotation. Often the identity of a person making a
statement is more newsworthy than the quote itself. DO NOT REPORT that the public
official is “dishonest” without qualification. Even though that might be a reasonable
conclusion based on the facts, it is not a fact itself.
Do not take sides in evaluating disputed facts. You can compare and contrast differing
version of events with each other in a news story, but do not state unequivocally that one
side or the other is lying, or that one side or the other is factually incorrect. That is an
opinion, and should be qualified as such as an opinion, it should not appear in a news
story where a reader may confuse it with a factual report.
Instead of “Mrs Nganga is lying because the video tape at the scene shows the officer
acted courteously. Mrs. Nganga denied assaulting the officer even after she was
confronted with the videotape and hospital records showing medical treatment of slap
marks on the officer’s right cheek.”

8. Counteract any biasness

Be aware of the newspaper’s political opponents. In dealing with news about such
persons, take special care to demonstrate good faith regard for the truth of the statements
you print. Often actual malice can be proven by showing one side has a grudge against
the other.

INTELLECTUAL PROPERTY RIGHTS

The term intellectual property refers broadly to the creations of the human mind.
Intellectual property relates to items of information or knowledge, which can be
incorporated in tangible objects at the same time in an unlimited number of copies at
different locations anywhere in the world.
The property is not in those copies but in the information or knowledge reflected in them.
Intellectual property rights are also characterized by certain limitations, such as limited
duration in the case of copyright and patents.
The importance of protecting intellectual property was first recognized in the Paris
Convention for the Protection of Industrial Property in 1883 and the Berne Convention
for the Protection of Literary and Artistic Works in 1886. Both treaties are administered
by the World Intellectual Property Organization (WIPO).

Why IP protection?
This concept protects the interests of creators by giving them property rights over their
creations. Intellectual property rights (IRP) like copyrights, design, trademarks and
patents are conferred upon people or organizations all over the world on three premises.
Firstly, it is assumed that such creative activities/inventions are inelastic in supply and
will not get generated in economically adequate measure for public use without economic
incentives.
The second premise is that without some sort of monopoly power being granted, at least
for sometimes, to those generating such activity, adequate economic benefits will not
accrue to them. Thirdly, it is taken for granted that IPR regulations ensure such special
economic benefits to those individuals/organizations indulging in creative activity using
their special talents7.
Countries generally have laws to protect intellectual property for two main reasons.
One is to give statutory expression to the moral and economic rights of creators in their
creations and to the rights of the public in accessing those creations.
The second is to promote creativity, and the dissemination and application of its results,
and to encourage fair trade, which would contribute to economic and social development.

Types of intellectual property

Intellectual property is usually divided into two branches, namely
a. Industrial property, which broadly speaking protects inventions, and,
b. copyright, which protects literary and artistic works
Industrial property takes a range of forms. These include patents to protect inventions,
and industrial designs, which are aesthetic creations determining the appearance of
industrial products.

7
Nair KRG & Kumar Ashok (Editors) Intellectual property Rights, Allied Publishers Limited,
New Delhi, 1995
Industrial property also covers trademarks, service marks, layout-designs of integrated
circuits, commercial names and designations, as well as geographical indications, and
protection against unfair competition.

Copyright relates to artistic creations, such as books, music, paintings and sculptures,
films and technology-based works such as computer programmes and electronic
databases.
In most European languages other than English, copyright is known as author’s rights.
The expression copyright refers to the main act which, in respect of literary and artistic
creations, may be made only by the author or with his authorization. That act is the
making of copies of the work.
The expression author’s rights refer to the creator of the artistic work, its author. It thus
underlines the fact, recognized in most laws, that the author has certain specific rights in
his creation which only he can exercise (such as the right to prevent a distorted
reproduction). Other rights (such as the right to make copies) can be exercised by other
persons, for example, a publisher who has obtained a license from the author.
While other types of intellectual property also exist, it is helpful for present purposes to
explore the distinction between industrial property and copyright in terms of the basic
difference between inventions and literary and artistic works.
Inventions may be defined in a non-legal sense as new solutions to technical problems.
These new solutions are ideas, and are protected as such. Protection of inventions under
patent law does not require that the invention be represented in a physical embodiment.
The protection accorded to inventors is, therefore, protection against any use of the
invention without the authorisation of the owner.
Even a person who later makes the same invention independently, must obtain
authorization before he can exploit it.
Unlike protection of inventions, copyright law protects only the form of expression of
ideas, not the ideas themselves. The creativity protected by copyright law is creativity in
the choice and arrangement of words, musical notes, colours and shapes.
So copyright law protects the owner of property rights against those who copy or
otherwise take and use the form in which the original work was expressed by the author.
From this basic difference between inventions and literary and artistic works, it follows
that the legal protection provided to each also differs.
Since protection for inventions gives a monopoly right to exploit an idea, such protection
is short in duration- usually about 20 years.
The fact that the invention is protected must also be made known to the public. There
must be an official notification that a specific, fully described invention is the property of
a specific owner for a fixed number of years. In other words, the protected invention must
be disclosed publicly in an official register.
Since the legal protection of literary and artistic works under copyright, by contrast,
prevents only unauthorized use of the expressions of ideas, the duration of protection can
be much longer than in the case of the protection of ideas themselves, without damage to
the public interest.
Also, the law can be, and in most countries is, simply declaratory. That is, the law may
state that the author of an original work has the right to prevent other persons from
copying or otherwise using his work.
So a created work is considered protected as soon as it exists, and a public register of
copyright protected works is not necessary.

Works protected by copyright

For the purposes of copyright protection, the term “literary and artistic works” is
understood to include every original work of authorship, irrespective of its literary or
artistic merit. The ideas in the work do not need to be original, but the form of expression
must be an original creation of the author.
The Berne Convention for the Protection of Literary and Artistic Works (Article 2) states:
“The expression ‘literary and artistic works’ shall include every production in the literary,
scientific and artistic domain, whatever may be the mode or form of its expression”.

The Convention goes on to list the following examples of such works:

i. books, pamphlets and other writings;
ii. lectures, addresses, sermons;
 iii. dramatic or dramatico-musical works;
iv. choreographic works and entertainments in dumb show;
v. musical compositions with or without words;
vi. cinematographic works to which are assimilated works expressed by a process
analogous to cinematography;
vii. works of drawing, painting, architecture, sculpture, engraving
viii. and lithography;
ix. photographic works, to which are assimilated works expressed by a process
x. analogous to photography;
xi. works of applied art; illustrations, maps, plans, sketches and three-dimensional
xii. works relative to geography, topography, architecture or science;
xiii. “translations, adaptations, arrangements of music and other alterations of a
xiv. literary or artistic work, which are to be protected as original works without
xv. prejudice to the copyright in the original work.”
xvi. “collections of literary or artistic works such as encyclopedias and anthologies
which, by reason of the selection and arrangement of their contents, constitute
intellectual creations, are to be protected as such, without prejudice to the
copyright in each of the works forming part of such of such collections.”

What is protected?
Member countries of the Berne Union, and many other countries, provide protection
under their copyright laws for the above categories of works.
The list, however, is not intended to be exhaustive. Copyright laws also protect other
modes or forms of expression of works in the literary, scientific and artistic domain,
which are not included in the list.

Computer programmes are a good example of a type of work which is not included in the
list in the Berne Convention, but which is undoubtedly included in the notion of a
production in the literary, scientific and artistic domain within the meaning of Article 2.
Indeed, computer programmes are protected under the copyright laws of a number of
countries, as well as under the WIPO Copyright Treaty (1996).
A computer programme is a set of instructions, which controls the operations of a
computer in order to enable it to perform a specific task, such as the storage and retrieval
of information. The programme is produced by one or more human authors, but in its
final “mode or form of expression,” it can be understood directly only by a machine (the
computer), not by humans.

Multimedia productions are another example of a type of work not listed in the Berne
Convention, but which comes within the notion of creations in the literary, scientific and
artistic domain.
While no acceptable legal definition has been developed, there is a consensus that the
combination of sound, text and images in a digital format, which is made accessible by a
computer programme, embodies an original expression of authorship sufficient to justify
the protection of multimedia productions under the umbrella of copyright.

Rights protected under copyrights

The principle of any kind of property is that the owner may use it as he wishes, and that
nobody else can lawfully use it without his authorization. This does not, of course, mean
that he can use it regardless of the legally recognized rights and interests of other
members of society.
Similarly, the owner of copyright in a protected work may use the work as he wishes, and
may prevent others from using it without his authorization.
The rights granted under national laws to the owner of copyright in a protected work are
normally exclusive rights to authorize a third party to use the work, subject to the legally
recognized rights and interests of others.
There are two types of rights under copyright:
a. Economic rights which allow the rights owner to derive financial reward from the use
of his works by others.
b. Moral rights which allow the author to take certain actions to preserve the personal link
between himself and his work.
Most copyright laws state that the author or rights owner has the right to authorize or
prevent certain acts in relation to a work. The rights owner of a work can prohibit or
authorise:
i. its reproduction in various forms, such as printed publications or photocophying
ii. or sound recordings;
iii. the distribution of copies;
iv. its public performance;
v. its broadcasting or other communication to the public;
vi. its translation into other languages;
vii. its adaptation, such as a novel into a screenplay.
The right of the copyright owner to prevent others from making copies of his works
without his authorization is the most basic right protected by copyright legislation.
The right to control the act of reproduction – be it the reproduction of books by a
publisher, or the manufacture by a record producer of compact discs containing recorded
performances of musical works – is the legal basis for many forms of exploitation of
protected works.
Other rights are recognized in national laws in order to ensure that this basic right of
reproduction is respected.
Many laws include a right specifically to authorize distribution of copies of works.
Obviously, the right of reproduction would be of little economic value if the owner of
copyright could not authorize the distribution of the copies made with his consent. The
right of distribution usually terminates upon first sale or transfer of ownership of a
particular copy.
This means, for example, that when the copyright owner of a book sells or otherwise
transfers ownership of a copy of the book, the owner of that copy may give the book
away or even resell it without the copyright owner’s further permission.
Another right which is achieving increasingly wide recognition, and is included in the
WIPO Copyright Treaty, is the right to authorize rental of copies of certain categories of
works, such as musical works in sound recordings, audiovisual works, and computer
programmes.
This became necessary in order to prevent abuse of the copyright owner’s right of
reproduction when technological advances made it easy for rental shop customers to copy
such works.
Finally, some copyright laws include a right to control importation of copies as a means
to prevent erosion of the principle of territoriality of copyright; that is; the legitimate
economic interests of the copyright owner would be endangered if he could not exercise
the rights of reproduction and distribution on a territorial basis.

A. Conceptual and Strategic Considerations in Copyright Economics

Copyright contributes to socio-economic development in at least two ways. First,

copyright and IP are a source of royalty and related payments to creators, publishers and

distributors.

Second copyright and IP is a source of regular national income or revenue stream,

especially in the form of taxes8.

Copyright contributes to national revenue as the copyrighted products are subject to

taxation and other related fees such as registration fees.

In addition, employment is created in the production and distribution of copyrighted

products.

Similarly copyright and trade mark are crucial in the advertising industry, which is a

major income earner in Kenya. These IP doctrines and the related processes help secure

quality and consumer confidence, which result in increased sales and translate to

development9.

Kenya, whose IP regime is still lacking in many aspects, is yet to realize the full

economic benefits of IP. With regard to copyright, the copyright owners are losing

8
Sihanya, B, Copyright Law in Kenya
9
Sihanya, B, Copyright Law in Kenya
millions of shillings due to infringement, piracy, and counterfeiting. This is attributed to

numerous factors10:

a. Kenya does not have a way of monitoring copyright transactions. The role of looking

out for infringers is largely left to the copyright owners who have neither the capacity nor

the mechanism to monitor each part of the country and look out for copyright infringers.

b. Many creators or artists are not aware that they possess valuable IP rights. They

therefore go about their lives believing that copyright infringement is either permissible

or has no remedy.

c. The penalties provided for copyright infringement are not sufficient to control

infringement. The Copyright Act provides a maximum penalty of Kshs. 800,000 or 10

years imprisonment. The Kenyan practice has been that courts impose (lower) fines

rather than the jail term. For a copyright infringer who expects to earn Kshs. 4 million

from a school book, a fine of Kshs. 800,000 is like loose change, petty cash or

operational expenses and would not deter him from infringing the copyright.

d. Kenya loses a great amount of revenue due to activities such as infringement or piracy.

This has led to some arguing that it is better to permit some acts of IP infringement and

tax them in order to get revenue, or better, persuade or compel the infringers to engage in

appropriate legitimate business.

What then are the remedies available for right owners?

There are several remedies available to rights owners for safeguarding their property
under the Copyright Act.

10
Sihanya, B, Copyright Law in Kenya
Please note that copyright law is a part of private law, which vests exclusive rights on
individual beneficiaries. Hence the ultimate responsibility of policing those rights lies
with the owner who must keep a vigilant eye on their markets.

1. Criminal sanctions
Criminal sanctions are intended to act as a deterrent and assist rights owners who may not
afford to pursue civil action. Section 38 of the Copyright Act enumerates the offences
and penalties for infringement.
A person is liable for action if:
a) He makes for sale or hire, any infringing copies.
b) Sells or lets for hire infringing copies
c) Distributes infringing copies
d) Possess infringing copies not for own use (the possession more than a copy raises
this presumption)
e) Imports infringing copies for commercial use
f) Makes or has in possession contrivance used or intended for making infringing
copies.
The penalty ranges from a fine not exceeding Kshs. 400,000 or imprisonment up to 10
years for a) c) e). For offences b) and d) one shall be liable to imprisonment for a term
not exceeding two years or a fine not exceeding Kshs. 100,000. Repeat offenders are
liable to enhanced sentences.
Articles used for making infringing copies and any infringing copies, are liable for
destruction, whether or not the suspect is convicted as per s.38(8).
There are several challenges in the prosecution of pirates, the major ones being:
a. poorly drafted charges;
b. criminal procedure rules on complaints; and
c. limited knowledge of copyright law on the part of the judiciary and law
enforcement agencies.

2. Civil actions
A rights owner whose copyright has been infringed may file a suit against an infringer.
The court, if the case is proved, may order for:
I. Compensation
II. Destruction of infringing copies and contrivance for making such infringing
copies.
III. Injunction to prohibit further infringement.

3. Preliminary orders called Anton Piller orders, which are by nature similar to search
warrants, may be used to secure evidence from destruction.
4. Similarly, temporary injunctions can be obtained to stop further infringement as an
interim measure.

5. Border Measures
Under Article 51 to 60 of the Agreement on Trade Related Aspects of Intellectual
Property (TRIPS) - a part of the World Trade Organization Treaty, which Kenya is a
signatory, countries are supposed to put in place border measures.

Collective Management Organisations (CMOs) in Kenya

The exclusive right of authors to exploit their works is a basic element of copyright. In

the framework of collective management organisations (CMOs), copyright owners

authorise CMOs to monitor the use of their works, negotiate royalties with (prospective)

users, grant licences based on appropriate conditions, collect remuneration (or royalties)

and distribute the royalties among the copyright owners.

In the context of increasing copyright infringement in Kenya, CMOs have been

established or proposed by copyright owners to try and secure the copyright holders’

interests.

To qualify as a CMO under s. 46 of the Copyright Act, the agency must first be

incorporated as a company limited by guarantee. The company should also be registered

by the Kenya Copyright Board so as to have the authority of collecting and distributing

royalties. Once a company qualifies for registration and is sufficiently enabled, the

organization may perform certain CMO functions such as:

a. Monitoring copyright transactions and act as a watchdog on copyright use

and infringement or piracy;

b. Training its members on their copyright and remedies for infringement;

c. Collecting and storing copyright products; and

d. Collecting and distributing royalties on behalf of copyright owners.

Most CMOs in Kenya are faced with four major challenges.

a. First, lack of a firm constitutional foundation in a normative and institutional

sense.

b. Second, most CMOs are to collect royalties for and on behalf of its members as

well as for members with whom the Society has reciprocal agreements.

c. Relatedly, the Society of Performing Artists of Kenya (SPAK) is interested in

securing performers’ interests as it pursues registration as CMO. The Kenya

Copyright Board has been keen that the registered CMOs and the companies

abide by the law and relevant principles governing CMOs as they pursue

registration and once they are registered. established under Government ministries

and thus lack autonomy and independence.

d. Third, most CMOs have limited financial and technical capacity.

e. And fourth, most CMOs have inadequate copyright expertise among the managers

and members of the organizations.

CMOs in Kenya include Kenya Reprographic Rights Organization (KOPIKEN), which

seeks to protect and promote authors and publishers of literary works. KOPIKEN was

formed in the early 1990s to fight infringement or piracy in books and music, and to

ensure authors secure maximum benefits from their works. KOPIKEN was mandated to

act as a collecting society and is registered as a CMO by the Kenya Copyright Board. The

Music Copyright Society of Kenya (MCSK) seeks to protect authors, composers,

publishers of music, and musicians.

MCSK was one of the earliest CMOs or collecting societies to be registered by the Kenya

Copyright Board. MCSK had 680 members in 2008; and a repertoire of over 20,000

musical works. The major objective of MCSK is

Reducing infringement of intellectual property rights

Before the full potential of this industry can be unlocked, several measures must be
taken:
 Create public awareness on detrimental effects of piracy and counterfeits.
 Empower artists and investors in the industry to know their entitlements.
 Organize stakeholders into forums to articulate their issues and concerns.
 Offer incentives for the infrastructure development.
 Develop reliable distribution networks.
 Enhance enforcement action.
 Increase number of prosecutions and push for punitive convictions.
 Increase penalties for convicted pirates.

These demand concerted efforts by the stakeholders, the government and the media.

TRADEMARKS
This a symbol, word, or words legally registered or established by use as representing a
company or product.
Trademarks are examples of intangible intellectual property and usually comprises of a
distinctive symbol that identifies particular products of manufacturer, dealer, importer,
trader or retailer to the general public. Intellectual property rights are generally designed
to promote and protect artistic, scientific and technological innovations.
The use of trademarks in connection with the goods with which the registered proprietor
dealt emerged as early as 1875 as commercial need in response to growth in commerce.
Trademarks took specialised form of property recognised by common law and equity,
provided that the trademark in issue had been put into public use.
Consequently, there arose need for ascertainment as to the nature and form of trademark
as property in respect of which their proprietors had an enforceable right of claim and the
right to protection from unauthorised use by others. To this end, registration of trademark
in England was introduced by the Trademarks Registration Act of 1875.
Accordingly, a registered proprietor could institute proceeding for infringement of
trademarks by an unauthorised user. The 1875 English Act, and the subsequent Act of
1905, 1919, and the Amendment Act of 1937, led to the enactment of the consolidating
Act of 1938 which is the piece of legislation on which the Trademarks Act (chapter 506
laws of Kenya) was modeled on.
The Act provides for the procedure and effect of registration of a trademark in relation to
the goods and services in which the registered proprietor deals in the course of his
business.
A proprietor may be defined as…“the person who first designed or used a trademark” and
who is entitled to claim proprietorship in it, but subject to any rights subsequently
acquired by others.
But where the relationship between two or more persons interested in a trademark is such
that no one of them is entitled as between himself and the other or others to use it except
either on behalf of both or all of them or in relation to an article with which both or all of
them are connected in the course of trade, those persons may be registered as joint
proprietors of the trademark.
In effect, the Act contemplates registration of more than one person as joint proprietors
but as long as they do not use or propose to use the trademark independently. The Act
defines the nature and form of a registerable trademark.

To be registerable:
a. the matter tendered for registration must consist of a mark and be a trademark
within the meaning of the Act.
b. The applicant must be the proprietor of the mark and
c. must himself use or intend to use the mark, provided that registration by another
or others.
d. In every case, the matter sought to be registered as a trademark must not be
objectionable for any valid reason.

In general terms, the symbol may consist of a devise, words, or combination of these.
A “mark” is defined in section 2(1) of the Trademarks Act (Chapter 506) as including
“…..a device, brand, heading, label, ticket, name, signature, word, letter or numeral, or
any combination thereof.”
A trademark is: ‘….a mark adapted in relation to any goods for the purpose of indicating ,
or so as to indicate, a connection in the course of trade between the goods and some
person having the right either as proprietor.”
Section 6 of the Act requires trademarks to be registered in respect of particular goods or
services classified in accordance with the International Classification of Goods and
Services so as to confer on the license or proprietor the exclusive right to the use of the
registered trademark in relation to the goods or services in which he trades.
International Classification of Goods and Services as regards registration of marks means
the classification in accordance with the Nice Agreement of the 15 June 1957 as revised
and amended from time to time establishing an international classification of goods and
services.
Any figurative element of mark is required to be classified in accordance with the
International Classification of the Figurative Elements of Marks. International
Classification of the Figurative Elements of Marks means the classification of the
figurative elements of marks of the 12 June 1973 as revised and amended from time to
time.
However, not all marks are registerable as trademarks in relation to any goods or
services.
For a trademark to be registerable, it must be distinctive and must contain at least one of
the following essential particulars or form as required by section 12 of the Act:
1) Name of the company, individual or firm, represented in a special or particular
manner, the bona fide user by a man of his own name is protected by statute whether he
traded under that name or whether he used it as a trademark in respect of his goods.
2) The signature of the applicant for registration or of his in business: or
3) An invented word or invented words; or
4) A word or words having no direct reference to the character or quality of the goods
and not being a geographical name or surname; or
5) Any other distinctive or descriptive mark, but a name, signature, word or words, other
than those falling within the aforesaid descriptions.
But a name, signature or word or words, other than such as fall within heads (1) to (4)
above, is not registrable under head (5) except upon evidence of its distinctiveness.
The term “distinctive” means “adapted, in relation to the goods in respect of which a
trademark is registered or proposed to be registered, to distinguish goods with which the
proprietor of the trademark is or may be connected in the course of trade from goods in
the case of which no such connection subsists, either generally or, where the trademark is
registered or proposed to be registered subject to limitations, in relation to use within the
extent of the registration”.
According to section 11, registration of a trademark should not in any case interfere with
the bona fide use by any person of his own name of his place of business, or description
of the character or quality of his goods.
As has been rightly observed, the right to registration largely depends on whether other
traders are likely, in the ordinary course of their business and without any improper
motive, to desire to use the same mark, or some mark nearly resembling it, on or in
connection with their own goods.
In order for a trademark to be registerable, it must also be inherently capable , by reason
of its use or of any other circumstances, of distinguishing goods with which its proprietor
is connected in the course of trade from goods in the case of which no such connection
subsists, unless registration thereof is expressly prohibited by the Act.
For instance, section 14 of the Act prohibits registration as a trademark or as part of a
trademark any matter the use of which would tend to:
1) Deceive or cause confusion or otherwise be disentitled to protection by a court of
justice; or
2) Be contrary to law or morality; or
3) Be a scandalous design; or
4) Be identical or so similar to a registered trademark so as to cause confusion.

Section 15(1) prohibits registration of a trademark in respect of any goods or description

of goods if it is identical with a trademark belonging to a different proprietor and already
registered in respect of the same goods, or description of goods or if it so nearly
resembles such a trademark as to be likely to deceive or cause confusion.
This prohibition applies where goods are the same or are the same description taking
account of the following three factors:
(a) The nature and composition of the goods;
(b) The respective uses of the articles; and
(c) The trade channels through which the commodities are respectively bought and
sold.
Section 15 A (4) prohibits registration of a trademark, or an essential part thereof, is
likely to impair, interfere if that trademark, interfere with or take unfair advantage of the
distinctive character of the well-known trademark. The court or the registrar may,
however, allow registration or use of similar trademarks on such conditions or limitations
as would be fit to.

The ideal role of the Media

Media as creators
The media is amongst the biggest creators of intellectual property rights, especially
copyright products. The management of copyright and other IP is therefore important to
the fourth estate.
Individual journalists, freelance or employed in the industry, also need to know their
rights as employees and creators of these rights to avoid unnecessary disputes over
ownership.

Media as users
Media being part of copyright industry uses creative works of its employees and other
creators. It is therefore expected that the media should have a Copyright/IP policy in
place to guide its management of these critical resource.

Media as information, communication and education agents

The average member of the Kenyan public is either unaware or misinformed about
copyright and intellectual property. As already noted above, the lack of awareness of the
need to respect intellectual property is a major reason for piracy in the country.
The copyright industry therefore relies on the media in Kenya to deliver correct
information about the intellectual property if we are to change the public perceptions.
The media can contribute towards this end by highlighting any successes in the campaign
against piracy and educating the public.

Mass Media Laws

Four aspects of the legal environment in which news media operate and where law is a
factor either promoting or impeding news media independence and effectiveness warrant
attention: (1) newsgathering; (2) content-based regulation; (3) content-neutral regulation
that has the potential to influence content indirectly; and (4) protection of journalists in
their professional activity, including protection against physical attacks.
Newsgathering, a key function of the press in a democratic society, is an essential
condition of news media effectiveness. Laws concerning newsgathering include those
that recognize and guarantee public access to government – controlled information and
institutions, with limited exceptions for national security, protection of personal privacy,
crime prevention, and other goals. Laws concerning the licensing and accreditation of
journalists also relate to this question of effectiveness.
Another set of laws deals with content-based regulation, which we view as intervention
by the public authorities, either through "legal" means (that is, on the
basis of legislative acts or judicially-created norms) or through "extra - legal" means
(governmental acts that are not grounded in legislative or judicial norms directly targeted
at content). These laws, which seek to advance a range of state,
social, and individual interests, operate through forms of prior review censorship,
conditions of market entry, and regimes of subsequent punishment for perceived abuses
of journalistic freedoms. The scope of such content-related concerns and their methods of
enforcement represent a useful yardstick by which to measure whether an enabling
environment exists.
The third category comprises laws that are not targeted directly at editorial content (that
is, are content - neutral on their face), but which have an incidental impact and therefore
create the risk of external manipulation in their application, or else laws that are intended
to shield media from external influence.
Finally, there is an examination of issues related to protection of journalists in their
professional activity. There are at least two components of this category. The first relates
to the matter of journalists’ job security, and focuses on "internal press freedom" or the
relationship between journalists and media owners.
The second concerns the matter of physical security: journalists often must endure the
threat or the reality of physical attacks upon them from either public or private persons,
and the extent to which the legal system protects them is also a key element in an
enabling environment.
Increasingly, access to the information bases of the Internet is a major indicator of the
openness of a society. One question is whether domestic journalists and editors have
sufficient access to inform their publications and make them more attractive to readers.
This is a question of training, availability, and cost.
Restrictive states have sought ways to ration access to the Internet, through high
transmission fees, limited licenses for Internet Service Providers, or specific approval for
use of such facilities. An enabling environment would promote the use of access to the
Internet by the press, as well as by citizens at large.
The Internet appears, at least for the elite, to be one of the least expensive means of
gaining a wide variety of views without the intermediation of the state.
Internet cafes can become the new coffeehouses of political discourse. On the other hand,
they can, and in some societies do, mask a policy in which access is restricted to
particular physical locations, and the computers have access to a highly censored series of
websites and servers.
The regulation of access to signals from satellites, including direct broadcast satellites, is
another "new technology" set of rules with implications for transitions to democracy.
These rules include prohibitions on satellite dishes or policing of dishes that are pointed
to prohibited satellites or a satellite that is carrying undesirable channels. In modern
democratic societies, the process of developing appropriate and stable institutions
increasingly relies on associations and groups that are independent of government. A
strong civil society also demands and oversees legal constraints on state power and the
accountability of state actors.
The increased role of civil society marks a shift from "government" to "governance,"
with governance involving a far larger group of participants and players11.
According to the World Bank," Good governance is epitomized by predictable, open and
enlightened policy making, a bureaucracy imbued with professional ethos acting in
furtherance of the public good, the rule of law, transparent processes, and a strong civil
society participating in public affairs. Poor governance is characterized by arbitrary
policy making, unaccountable bureaucracies, unenforced or unjust legal systems, the
abuse of executive power, a civil society unengaged in public life, and widespread
corruption."

11
Monroe Price, Challenges in Media Matters: Practitioner Experiences, The Enabling
Environment For Free and Independent Media; Global forum for media development
Media Council Act 2013
The Media Council Act 2013, which repeals the Media Act of 2007, decrees the
establishment of the Media Council of Kenya. This is a body corporate with perpetual
succession and a common seal and shall, in its corporate name, be capable of--
(a) Suing and being sued;
(b) Purchasing or otherwise acquiring, holding,
(c) Charging and disposing of moveable and immovable property;
(d) Entering into contracts; and
(e) Doing or performing all other things or acts necessary for the proper performance of
its functions under this Act, which may lawfully be done or performed by a body
corporate.

The functions of the council, according to the Act include:

(a) Promote and protect the freedom and independence of the media;
(b) Prescribe standards of journalists, media practitioners and media enterprises;
(c) Ensure the protection of the rights and privileges of journalists in the performance of
their duties; -
(d) Promote and enhance ethical and professional standards amongst journalists and
media enterprises;
(e) Advise the government or the relevant regulatory authority on matters relating to
professional, education and the training of journalists and other media practitioners;
(f) Develop and regulate ethical and disciplinary' standards for journalist, media
practitioners and media enterprises;
(g) Accredit journalists and foreign journalists by certifying their competence, authority
or credibility against official standards based on the quality and training of journalists in
Kenya, including the maintaining a register of journalists, media enterprises and such
other related registers as it may deem fit and issuance of such document evidencing
accreditation with the Council as the Council shall determine;
(h) Conduct an annual review of the performance and the general public opinion of the
media, and publish the results in at least two daily newspapers of national circulation;
(i) Through the Cabinet Secretary, table before Parliament reports on its functions;
(j) Establish media standards and regulate and monitor compliance with the media
standards;
(k) Facilitate resolution of disputes between the government and the media and between
the public and the media and intra media;
(l) Compile and maintain a register of accredited journalists, foreign journalists, media
enterprises

(a) That the provisions of Article 33(2) of the Constitution are safeguarded;
(b) That the freedom and independence of media is exercised in a manner that respects
the rights and reputations of others;
(c) That the protection of national security, public order, public health and public morals
is safeguarded; and
(d) The compliance with any other written law.

In section 7 the Act provides that the Council shall have all the powers incidental to and
necessary for the effective discharge of its functions under this Act and any other written
law and shall-
(a) Establish and maintain an internal mechanism for the resolution of disputes;
(b) Prescribe procedures for determination of disputes relating to the media;
(c) Receive, investigate and deal with complaints made against journalists and media
enterprises;
(d) Summon and receive information of evidence relating to any matter.

In PART IV the Act provides for establishment of Complaints Commission, which shall
consist of seven members appointed by the Council, from among persons who are not
members of the Council.

Section 29 (l) provides that the Complaints Commission shall consist of -

(a) a chairperson, who shall be a person who holds or has held a judicial office in Kenya
or who is an advocate of the High Court of Kenya of not less than ten years standing; and
(b) Six other persons with knowledge and experience in any one of the following areas-
(i) Journalism;
(ii) Media policy and law;
(iii) Media regulation;
(iv) Business practice and finance;
(v) The performing arts or entertainment;
(vi) Advertising practice; or
(vii) Related social sciences.

Section 31 provides that in performing its functions or exercising its powers, the
Complaints Commission shall be independent in its operations and shall be guided by the
provisions of Article 159 of the Constitution, titled “Judicial Authority and Legal
System” which provides as follows:
(1) Judicial authority is derived from the people and vests in, and shall be exercised by,
the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the
following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration
and traditional dispute resolution mechanisms shall be promoted, subject to clause

(3) Traditional dispute resolution mechanisms shall not be used in a way that—
(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice
or morality; or
(c) is inconsistent with this Constitution or any written law.
Section 32 provides for the functions of the Complaints Commission, which are to-
(a) Mediate or adjudicate in disputes between the government and the media and between
the public and the media and intra media;
(b) Ensure the adherence to high standards of journalism as provided for in the code of
conduct for the practice of journalism in Kenya; and
(c) Achieve impartial, speedy and cost effective settlement of complaints against
journalists and media enterprises, without fear or favour.

Section 33 (l) provides that the Complaints Commission may, by notice in writing,
require any person to;
(a) Give to the Complaints Commission reasonable assistance in the investigation of a
complaint made under this Act; and
(b) Appear before the Complaints Commission for examination concerning matters
relevant to the investigation of any complaint made under this Act.

Section 33 (2) states that the Commission shall not be bound by the rules of evidence as
set out in the Evidence Act of Kenya.
(3) Except as expressly provided for in this Act or any Regulations made pursuant to this
Act, the Complaints Commission shall regulate its own procedure.

(2) A complaint under section 31 may be made-

(a) orally, either in person or by any form of electronic communication; or
(b) In writing, given to the Registrar of the Complaints Commission setting out the
grounds for the complaint, nature of the injury or damage suffered and the remedy
sought.
(3) Where complaints are oral, the Commission may require them to be reduced in
writing within seven days, unless it is satisfied there are good reasons for not doing so.
(4) A complainant shall disclose to the Commission-
(a) The complainant's name and address; and
(b) Other information relating to the complainant's identity that the Commission
reasonably requires.
(5) Despite subsection (4), the Commission may-
(a) keep information provided by a complainant confidential if there are special
circumstances or the Commission considers it is in the complainant's interests to do so; or
(b) Accept an anonymous complaint concerning an issue of public interest, or where no
clearly identifiable person or group is affected.
(6) The Commission may ask a complainant to provide more information about the
complaint within a reasonable time fixed by the Commission.
(7) The Commission may at any time require a complaint or information provided by a
complainant to be verified by the complainant by oath or statutory declaration,
(8) Without prejudice to the functions of the Council set out in section 8 of the Act, the
Council may take up a complaint on its own initiative, and forward the same to the
Commission for determination where in its opinion the complaint has public interest
implications.
35. (1) Upon receipt of a complaint, the Complaint Commission shall notice, in writing,
the party against whom the complaint has been made, within fourteen-days of receipt of
the complaint, stating the nature of the complaint, the breach of act or omission
complained of and the date within which the matter shall be considered by the
Commission.
(2) The notice referred to in subsection (l) shall require the person against whom the
complaint is required to respond to the complaint in writing or appear before it at the
hearing of the complaint.
(3) After considering each parties' submissions, the Commission shall then conduct a
preliminary assessment to determine the admissibility or otherwise of the complaints
lodged within fourteen days.
(a) The Complaints Commission or any of its panels may; after conducting a preliminary
assessment of a complaint, and being of the opinion that the complaint is devoid of merit
or substance, dismiss such complaint and give reasons thereto;
(5) A party may within fourteen days from the date of dismissal, apply for review or
variation of the Commission's decision under subsection (3).
(6) Where the Commission considers there is a breach of the Act or Code it may facilitate
an early resolution of the complaint by a referral to an inter parties mediation process
within fourteen days.
36. (l) The chairperson of the Complaints Commission may appoint one of the members
of the Commission as a mediator, to attempt to facilitate an early voluntary settlement of
the dispute between the parties to the dispute.
(2) The mediation process shall be voluntary and shall be conducted in accordance with
the rules made by the Commission under this Act.
(3) The mediation proceedings shall be-
(a) private and confidential; and
(b) conducted on a without prejudice basis.
(a) No person may refer to anything said at the proceedings during any subsequent
proceedings, unless the parties agree in writing.
(5) Upon satisfactory determination of a mediation 'meeting, the mediator shall cause to
be signed by both parties a certificate signaling acceptance of the decision which shall be
adopted as a decision of the parties in the dispute.
(6) No person, including the member who acted as mediator, may be called as a witness
during subsequent proceedings in the Commission or in any court to give evidence about
what transpired during the previous mediation meetings.
(7) The mediation rules and procedure made pursuant to this section shall provide for-
(a) The role and responsibilities of the mediator;
(b) The roles and responsibilities of the parties;
(c) The indemnification of the mediator in case of any claims for damages that may arise
in any way from the mediation;
(d) The protection of confidential information disclosed or obtained during mediation;
(e) The inadmissibility in any legal proceedings of any statements made during the course
of proceedings;
(f) The settlement of the disputes in accordance with the Act and Code of Conduct;
(g) The acceptance of the settlement and issuance of a Certificate of Acceptance of
Settlement;
(h) The binding nature and the admissibility of the Settlement Agreement in court for
enforcement purposes; and
(i) The costs of the mediation.
37. (1) Where the mediation fails or the parties or either of them objects to any mediation
efforts, the Commission shall set down the complaint for determination and issue a date
on which the matter shall be determined by the Complaints Commission after a full
hearing.
(2) The chairperson of the Complaints Commission may establish hearing panels each
consisting of three Members of the Commission to deal with, hear and hearing of
disputes.
(3) Panels established under subsection (l) shall exercise all the powers and shall perform
all the duties any functions of the Complaints Commission in relation to any matter
before the panel.
(4) Members of a panel established under subsection (l) may, if necessary, consult with
other members of the Complaints Commission for purposes of ensuring consistency of
decisions of the Commission.
(5) The Complaints Commission shall, having heard the matter the subject of the
complaint, make a report, issue any decision as it deems appropriate and give directions
in connection with the complaint, and shall publish its findings if it considers it in the
public interest to do so.
(6) The Complaints Commission shall communicate its decision to the parties concerned
within seven days from the time the decision is made.
(7) The Complaints Commission shall conduct its hearings in public unless the
Commission upon recorded compelling reasons certifies any particular session as closed.
(8). The Complaints Commission may publish or publicize its decision made under this
section in any case where it thinks it appropriate to do so.
3E. (l) The Complaints Commission or any of its panels may, after hearing the parties to
a complaint-
(a) order the offending party to publish an apology and correction in such manner as the
Commission may specified;
(b) order the return, repair, or replacement of an equipment or material confiscated or
destroyed;'
(c) Make any directive and declaration on freedom of expression;
(d) Issue a public reprimand of the journalist or media enterprise involved;
(e) Order the offending editor of the broadcast, print or online material to publish the
Commission's decision in such manner as is specified by the Commission;
(f) impose a fine of not more than five hundred thousand shillings on any respondent
media enterprise and a fine of not more than one hundred thousand shillings, on any
journalist adjudged to have violated the Act or Code of Conduct, where upon such a fine
shall be a debt due to the Council and recoverable as such;
(g) In its reasons for its findings, record a criticism of the conduct of the Complainant in
relation of the Complaint, where such criticism, is in its view, warranted;
(h) Recommend to the Council the suspension or removal from the register of the
journalist involved;
(i) Make any supplementary or ancillary orders or directions that it may consider
necessary for carrying into effect orders or directives made.
Section 40 states that a member of the Commission shall-
(a) be free from any criminal or civil liability for anything done or said in his capacity as
a member of the Commission; and
(b) Not be subject to court summons to give evidence on any proceedings before
the Commission or any of its panels.
(c) The Complaints Commission shall keep or cause to be kept a record of all
proceedings of the Complaints Commission. A party aggrieved by the
decision of the Commission may, after thirty days after the Commission has
made its decision, apply to the High Court for such orders as the court may, in
exercise of its jurisdiction under Article 165(6) of the Constitution, think just.
Where no application is made to challenge the decision of the Commission
within thirty days of the date of the decision, the decision of the Council shall
be final and binding to the parties.
Kenya information and Communication Act
Section 83U
Unauthorised access to computer data
(1) Subject to subsections (2), any person who causes a computer system to perform a
function, knowing that the access he has secured is unauthorised, shall commit an offence
and shall on conviction be liable to a fine not exceeding two hundred thousand shillings
or imprisonment for a term not exceeding two years or both.
(2) A person shall not be liable under subsection (1) where he—
(a) is a person with a right to control the operation or use of the computer system and
exercises such right in good faith;
(b) has the express or implied consent of the person empowered to authorize him to have
such an access;
(c) has reasonable grounds to believe that he had such consent as specified under
paragraph (b) above; or
(d) is acting in reliance of any statutory power for the purpose of obtaining information,
or taking possession of any document or other property.

Section 83V Access with intent to commit offences

(1) Any person who causes a computer system to perform any function for the purpose of
securing access to any program or data held in any computer system, with intent to
commit an offence under any law, shall commit an offence and shall, on conviction be
liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a
term not exceeding two years or both.
(2) For the purposes of this section, it is immaterial that—
(a) the access referred to in subsection (1) is authorized or unauthorized;
(b) the further offence to which this section applies is committed at the same time when
the access is secured or at any other time.
83W. Unauthorized access to and interception of computer service
(1) Subject to subsection (3), any person who by any means knowingly—
(a) secures access to any computer system for the purpose of obtaining, directly or
indirectly, any computer service;
(b) intercepts or causes to be intercepted, directly or indirectly, any function of, or any
data within a computer system, shall commit an offence.
(2) A person convicted for an offence under subsection (1) shall be liable on conviction
to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not
exceeding three years or both.
(3) Where as a result of the commission of an offence under subsection (1), the
operation of the computer system, is impaired, or data contained in the computer system
is suppressed or modified, the person convicted of such offence shall be liable on
conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for
a term not exceeding two years or both.
(4) For the purpose of this section, it is immaterial that the unauthorized access or
interception is not directed at—
(a) any particular program or data;
(b) a program or data of any kind; or
(c) a program or data held in any particular computer system.
(5) A person shall not be liable under subsection (1) where he—
(a) has the express or implied consent of both the person who sent the data and the
intended recipient of such data;
(b) is acting in reliance of any statutory power.
83X. Unauthorized modification of computer material
(1) Subject to subsections (3) and (4), any person who, knowingly does an act which
causes an unauthorized modification of data held in any computer system shall, on
conviction be liable to a fine not exceeding five hundred thousand shillings or
imprisonment for a term not exceeding three years or both.
(2) Where as a result of the commission of an offence under this section—
(a) the operation of the computer system;
(b) access to any program or data held in any computer; or
(c) the operation of any program or the reliability of any data, is suppressed, modified or
otherwise impaired, a person convicted for the offence shall be liable on conviction to a
fine not exceeding two hundred thousand shillings and or imprisonment for a term not
exceeding two years or both.
(3) A person shall not be liable under this section where he is acting in reliance of any
statutory power.
(4) A modification is unauthorized if—
(a) the person whose act causes it is not himself entitled to determine whether the
modification should be made; and
(b) he does not have consent to the modification from any person who is so entitled.
(5) For the purposes of this section, it is immaterial whether an unauthorized
modification or any intended effect of it, be permanent or merely temporary.

Section 83Y. Damaging or denying access to computer system

Any person who without lawful authority or lawful excuse does an act which causes
directly or indirectly—
(a) a degradation, failure, interruption or obstruction of the operation of a computer
system; or (b) a denial of access to, or impairment of any program or data stored in, the
computer system, shall commit an offence and shall, on conviction be liable to a fine not
exceeding two hundred thousand shillings and or imprisonment for a term not exceeding
two years or both.

Section 83Z. Unauthorized disclosure of password

Any person who knowingly discloses any password, access code, or any other means of
gaining access to any program or data held in any computer system—
(a) for any wrongful gain;
(b) for any unlawful purpose; or
(c) knowing that the disclosure is likely to cause prejudice to any person, shall commit
an offence and shall, on conviction, be liable on conviction to a fine not exceeding two
hundred thousand shillings or imprisonment for a term not exceeding two years or both.

Section 84A. Unlawful possession of devices and data

(1) Any person who knowingly manufactures, sells, procures for use, imports, distributes
or otherwise makes available a computer system or any other device designed or adapted
primarily for the purpose of committing any offence under sections 83U to 83Z, shall
commit an offence. (2) Any person who knowingly receives, or is in possession, without
sufficient excuse or justification, of one or more of the devices under subsection (1) shall
commit an offence.
(3) Any person who is found in possession of any data or program with the intention that
the data or program be used, by the person himself or another person, to commit or
facilitate the commission of an offence under this Act, shall commit an offence.
(4) For the purposes of subsection (3), possession of any data or program includes—
(a) having possession of a computer system or data storage device that holds or contains
the data or program;
(b) having possession of a document in which the data or program is recorded; or
(c) having control of data or program that is in the possession of another person.

(5) Where a person is convicted under this section, he shall on conviction be liable to a
fine not exceeding two hundred thousand shillings or imprisonment for a term not
exceeding two years or both.
Section 84B. Electronic fraud
Any person who fraudulently causes loss of property to another person by—
(a) any input, alteration, deletion or suppression of data; or
(b) any interference with the functioning of a computer system, with intent to procure for
himself or another person, an advantage, shall commit an offence and shall, on conviction
be liable to a fine not exceeding two hundred thousand shillings and or imprisonment for
a term not exceeding three years or both.

Section 84C. Tampering with computer source documents

Any person who knowingly or intentionally conceals, destroys or alters, or intentionally
or knowingly causes another person to conceal, destroy or alter any computer source
code, computer programme, computer system or computer network, where the computer
source code is required to be kept or maintained by law for the time being in force, shall
on conviction be liable to a fine not exceeding three hundred thousand shillings or
imprisonment for a term not exceeding three years, or both.
Section 84D. Publishing of obscene information in electronic form
Any person who publishes or transmits or causes to be published in electronic form, any
material which is lascivious or appeals to the prurient interest and its effect is such as to
tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied therein, shall on
conviction, be liable to a fine not exceeding two hundred thousand shillings or
imprisonment for a term not exceeding two years, or both.
Section 84E. Publication for fraudulent purpose
Any person who knowingly creates, publishes or otherwise makes available an electronic
signature certificate for any fraudulent or unlawful purpose commits an offence and shall
on conviction be liable to a fine not exceeding one million shillings or imprisonment for a
term not exceeding five years, or both.
Section 84F. Unauthorized access to protected systems
Any person who secures access or attempts to secure access to a protected system in
contravention of the provisions of this Part shall be guilty of an offence and shall on
conviction be liable to a fine not exceeding one million shillings or imprisonment for a
term not exceeding five years, or both.
Section 84G. Re-programming of mobile telephone
(1) Any person who knowingly or intentionally, not being a manufacturer of mobile
telephone devices or authorized agent of such manufacturer, changes mobile telephone
equipment identity, or interferes with the operation of the mobile telephone equipment
identity, commits an offence. (2) A person guilty of an offence under this section shall
on conviction be liable to a fine not exceeding one million shillings or to imprisonment
for a term not exceeding five years or both.

Section 84H. Possession or supply of anything for re-programming mobile telephone

(1) A person commits an offence if he—
(a) has in his custody or under his control anything which may be used for the purpose of
changing or interfering with the operation of a mobile telephone equipment identifier;
and
(b) intends to use the thing unlawfully for that purpose or to allow it to be used
unlawfully for that purpose; or
(c) supplies anything which may be used for the purpose of changing or interfering with
the operation of a mobile telephone equipment; and
(d) knows or believes that the person to whom the thing is supplied intends to use it
unlawfully for that purpose or to allow it to be used unlawfully for that purpose; or
(e) offers to supply anything which may be used for the purpose of changing or
interfering with the operation of a mobile telephone equipment identifier; and
(f) knows or believes that the person to whom the thing is offered intends if it is supplied
to him to use it unlawfully for that purpose or to allow it to be used unlawfully for that
purpose.
(2) A person guilty of an offence under this section is liable on conviction to a fine not
exceeding one million shillings or to imprisonment for a term not exceeding five years or
to both.
Section 84I. Bona fide re-programming or possession
It shall not be an offence under sections 84G and 84H if—
(a) the re-programming of mobile telephone equipment identity is done; or
(b) the possession of anything that can change the mobile telephone equipment identity
is had, bona fides for personal technological pursuits or other technological review
endeavours.