Defamation – supplemental notes

Defamation is the publishing of false and defamatory statements concerning another person
without lawful justification. In Kenya, the law on defamation is derived from statute (the
Defamation Act, Cap 36 Laws of Kenya), and the common law.

There are two types of defamation.

i) Libel
ii) Slander

The distinction between the two is based on the form of expression. Libel is made in some
permanent and physical form e.g. writing, printing, pictures, effigies etc. while slander takes the
form of spoken words or some other form that is not permanent whether visible or audible. When
slander is done via wireless broadcasting it is treated as publication in permanent form.

Libel is said to be actionable per se while slander requires proof of damage e.g., loss of business,
job, or other lost opportunity. However, there are four (4) exceptions where the plaintiff does
not have to prove damage in slander, in which case, the slander is actionable per se.

i) Imputation of criminal conduct

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

Gray v Jones (1939) 1 All ER 739

The Defendant said to the plaintiff "You are a convicted person; I will not have you here."
The Plaintiff was held liable in slander without proof that the plaintiff was put in jeopardy of
prosecution.
ii) Imputation of certain contagious diseases
For instance, orally accusing someone of having a venereal disease. It is a moral issue where one
is immoral hence adverse consequences.

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 iii) Imputation of unfitness in business
Section 3 of the Defamation act provides that the plaintiff does not have to prove damage
where imputation relates to the plaintiff’s office profession, calling, trade or business.

iv) Imputation of unchastity against a woman

Section 4 of the Defamation Act provides that after imputation of unchastity against any
woman or girl, it shall not be necessary to proof essential damage. The said legislative
intervention is in line in developments in the 19 th Century in England and other Commonwealth
jurisdiction such as the United States and New Zealand which have introduced this as an
exception in slander actionable per se. Prior to legal reforms, the common law only recognised
three (3) exceptions – imputation of criminal conduct, imputation of certain contagious disease,
and imputation of unfitness in business, trade, or profession.

Allegations that a person has been unfaithful or promiscuous are actionable per se only if they
are against a woman. A man imputed to have been unfaithful or promiscuous must prove
damage, unless the allegations also constitute a criminal offense or are disparaging of his
business or professional reputation, in which case, they would fall under one of those two
rules. The allegations may be against a woman who is married or single and they may imply
anything from general unchaste conduct to adultery.

This is exception was introduced via legal reforms on the recognition that proving special
damages in sexual slander could be difficult for women. The requirement for special damages
when conceived as a form of property loss, was ‘ill – fitting’ as the harm female plaintiffs
claimed was often not pecuniary. Instead, it was often related to the women’s emotions, dignity,
and personal relationships.

The requirement for special damages meant that women had to argue their injuries in a way that
accorded to ‘masculine economic interests’. Courts tended to look at injuries that had tangible
financial consequences, such as undermining the plaintiff’s prospects for engagement, for
marriage was the ‘marketplace’ where women’s virtue had a cognizable value. The special

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damage requirement was further male – based as women at this time were far less likely than
men to have property assets and hence, they found it difficult to prove economic loss.

Historically, the concept was “reputation as property”. This concept identified reputation as a
form of intangible property, capable of being earned, such as the reputation a craftsman earns
through his workmanship. Hence a person’s good name has a value due to the institution of the
market. Defamation law therefore exists to ensure the person’s reputation is not stripped of its
proper market value. This requirement failed, however, to recognise more intangible harm
suffered by female sexual slander victims.

Example:

In Allsop v Allsop the plaintiff sued a man who allegedly claimed to have experienced ‘carnal
connection’ with her. She claimed that because of the allegations she had suffered disgrace, loss
of companionship, and had become unwell and unable to attend to her affairs. The English Court
of Exchequer found that the plaintiff’s claim was not actionable. There was no special damage
because the alleged loss had to be the natural consequence of the words spoken, and illness,
being dependent upon the peculiarities of a person, was not within the rule.

In Moore Gent v Meagher (1807) 1 Taunt 39, 127 ER 745 (Exchequer Chamber) the
defendant in error had previously enjoyed the friendship of several people who had entertained
her in their homes, and gratuitously provided her with food and drink. When the plaintiff in error
imputed incontinency to her the defendant’s friends shunned her. She consequently incurred
great expense in having to maintain herself while no longer enjoying the people’s hospitality.
Mansfield CJ held that the words had robbed the lady of material benefits, which would have
assumedly continued if the slander had not occurred, hence there was special damage.

That reasoning has been criticised as being a ‘contorted conversion of a relational injury into a
pecuniary one’, showing that recognition had not been truly given to the personal aspects of the
harm.

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 Elements of Defamation
1. The statement must be defamatory.
2. It must refer to the plaintiff.
3. It must be published to another person other than the plaintiff.

i) The statement must be defamatory.

A statement is said to be defamatory if it injures the plaintiff’s reputation. The traditional test had
been laid down in Parmiter v Coupland (1840) 6 MCE W. 105, i.e., to ask whether the words
complained of were calculated to injure the reputation of another by exposing him to hatred,
contempt, or ridicule.

However, Lord Atkin in Sim v Stretch (1936) T& R 669 stated that the phrase ‘exposing the
victim to hatred, ridicule and contempt’ appeared to be too narrow and therefore, the test should
be whether the words tended to lower the plaintiff in the estimation of right-thinking members of
the society, generally. To quote his Lordship:

“… Judges and textbook writes alike have found difficulty in defining with precision the word
“defamatory”. The conventional phrase exposing the plaintiff to hatred, ridicule or contempt is
probably too narrow. The question is complicated by having to consider the person, or class of
persons, whose reaction to the publication is the test of the wrongful character of the words
used. I do not intend to ask your Lordships to lay down a formal definition, but after collating
the opinions of many authorities I propose, in the present case, the test: Would the words tend
to lower the plaintiff in the estimation of right – thinking members of society generally...”
(emphasis supplied).

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

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In Berkoff v Burchill [1996] 4 All ER 1008 the defendant, a journalist wrote an article about the
plaintiff who was an actor and a film director in which it was said that the plaintiff was hideously
ugly. It was held by a majority that under the circumstances of this case, such words could be
said to be defamatory.

According to Neill LJ, words may be defamatory even though they neither impute disgraceful
conduct to the plaintiff nor any lack of skill or efficiency in the conduct of trade or business or
professional activity if they hold him up in contempt, scorn, or ridicule or if they tend to exclude
him from the society.

However, insults, which do not diminish a man's standing among other people do not found an
action for libel or slander. In the context of this case, the remarks about the plaintiff gave the
impression that he was not merely unattractive in appearance but repulsive. To say this of a
person in the public eye, who makes his living as an actor can lower his standing in the
estimation of the public and make him an object of ridicule.

Phillips LJ agreed with Justice Neill when he stated, "the law of defamation protects reputation
and reputation is not generally dependent upon physical appearance. Exceptionally there are
cases where words can be said to be defamatory, even though they do not attack the character
of the person of the plaintiff. The question must be determined in the right of the actual words
used and the circumstances in which they are used."

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

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Where the words allege dishonesty, then they are defamatory. In Machira v Wangethi
Mwangi & Daily Nation Newspapers the defendant alleged that the plaintiff an advocate had
stolen money belonging to a client. The defendant had published pictures in the Daily Nation
showing a lady holding the plaintiff by the collar and a tie in a fighting stance. Next to the
picture was the caption "an angry businesswoman collared a high court advocate yesterday in a
punch-up that brought the court proceedings to a standstill. The fight started at the corridors."
These were other words suggesting that the plaintiff had embezzled funds belonging to the lady
in the picture which funds had been paid to him after he did a case for her.

Section 16 (2) of the Defamation Act grants the defendant in a defamation suit to offer as part of
mitigation evidence proving that the plaintiff has either recovered or is in the process of
recovering damages for the same defamation in a separate suit. In J. P. Machira t/a Machira &
Co. Advocates vs Kamau Kanyanga & The Standard Ltd Nairobi HCC No. 612 of 1996 the
report complained of had appeared on the front page under the sensational heading “GOT
YOU”. It showed the plaintiff held by the neck by an angry woman and being assaulted by her,
watched by a crowd of onlookers. More pictures of the incident appeared in page 7 of the
newspaper depicting different stages of the assault under the heading “LEGAL TUSSLE” and a
sub – heading stating “punch up brings the High Court to a standstill”.

The report stated that the woman claimed that the plaintiff owed her KSHS 1,500,000/=. The
plaintiff contended that the report was not only false but was also malicious because it was
published after he had taken the trouble to explain to the defendants the correct position and had
produced documentary evidence in support of his explanation. In their defence, the defendants
contended that the report was true in substance and that the publication was made in the public
interest. They also denied malice, but their defence was struck out before commencement of the
trial.
Prior to the taking of evidence, and after considerable prodding, the defendants had published a
purported apology which was not given the same prominence as the report, was hidden in the
inside pages of the newspaper, and hence failed to, inter alia, to comply with the plaintiff’s
condition of prominence.

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In awarding the plaintiff general damages of KSHS 1,250,000/= and aggravated damages KSHS
250,000/=, Justice Kihara Kariuki considered that the plaintiff had recovered in Machira v
Wangethi Mwangi & Daily Nation Newspapers KSHS 8,000,000/= as general damages, KSHS
2,000,000/= as aggravated damages and KSHS 2,000,000/= for failure to offer apology.

In Father Samuel Waweru v Samuel Mburu & The Standard the Kenyan high court adopted a
test of defamation that considered the two tests that were set in the Parmitter and Sim cases. The
court stated" there is no wholly satisfactory definition of a defamatory imputation and three
formulae have been particularly influential:

i) Would the imputation tend to lower the plaintiff in the estimation of right-thinking
members of society generally?

ii) Would the imputation tend to cause others to shun or avoid the plaintiff?

iii) Would the words tend to expose the plaintiff to hatred, contempt, or ridicule?

Innuendo - Indirect defamation

The general rule is that words should be defamatory in their natural and ordinary sense.
However, words can also be defamatory by inference or by implication. This is where the
defendant does not directly state, his / her opinion of the plaintiff but makes it possible for a
conclusion to be made about the plaintiff’s character.

Lewis v Daily Telegraph (1964) AC 234

The plaintiff was the chairman of a company that was being investigated for undisclosed
offences.
The defendant which was a newspaper recorded the story as follows:
"Officers of the city of London are enquiring to the affairs of Rubber Improvement Ltd and its
subsidiary companies. The investigation was requested after the criticisms of the chairman’s
statements and the accounts by a shareholder at a recent company meeting. The chairman of the
co. is Mr. John Lewis.”

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The Company was subsequently absolved in the investigation and the plaintiff sued for
defamation alleging that the words implied that the company was being run fraudulently and
dishonestly that police suspected that crimes had been committed. It was held that the words
complained of were merely a reflection of the true situation which was that the company in
question was being investigated. No reasonable person would be led the conclusion that an
offence had been committed.

Also see Cassidy V Daily Mirror Newspapers

The Standard v Scholastic Omondi & Another

The appellant published a photograph of the respondent with his uncle on two separate
occasions.
In the first instance, the photo was accompanied by the caption "THRILL: Swingmen are a
source of great excitement to children as a plaything, but they can be dangerous if not used
properly."

In the second publication, the same photo was published with the caption "for children enjoy the
company of both parents, breaks leave them completely devastated." In this second instance, the
photo was in the context of a story entitled "The Pain of Divorce" which explored the effects of
divorce in a family. None of the persons in the photo was named and it was argued for the
appellants that the photos had been used for illustrative purposes only. Held: The publishing of
the picture in the middle of an article discussing divorce and setting up a caption that alluded to
the effects of divorce suggested that the parents of the children in the picture had divorced hence
the publication was defamatory.

ii) The words must refer to the plaintiff either expressly ( by name or by description)
or impliedly (by reasonable inference).

The test is whether the person reading or hearing the statement would believe that it refers to the
Plaintiff. In E. Hulton & Co. v Jones [1908-1910] All ER Rep 29 the plaintiff by the name of

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Artemus Jones was a barrisster who sued to defendant in respect of an article appearing in their
newspaper which had referred to a certain Artemus Jones who had engaged in certain immoral
acts by living with a woman who was not his wife. The defendant argued that the Artemus Jones
they referred to was a fictional character who had no relation to the plaintiff whatsoever. It was
found that in fact that the plaintiff was well known to the Defendant. It was held that the
defendants were liable because any reasonable person reading the statement would conclude that
it was referring to the plaintiff - Artemus Jones.

East African Standard v Gitau (1970) EA 678 dealt with the responsibility of media outlets in
ensuring accurate reporting.

The plaintiff (Jeremiah Gitau Kiereini) was involved in a road traffic accident along Limuru
Road at night. An employee of the appellant was sent to report the accident. The plaintiff
contended that the caption carried by the newspaper on the accident was defamatory of him
because it contained inaccuracies, because police could not have been mystified about the
accident at 2. 00 A.M. when in truth, police discovered the car earlier than 2. 00 A.M., the car
had crashed into an electric pole, and the plaintiff had been treated at Aga Khan Hospital but was
not admitted.

The principal question for determination was, what is the meaning ascribed to the caption by
innuendo? Does the caption under the circumstances amount to an innuendo disparaging to the
respondent’s character?

The respondent contended that the caption meant and was understood to mean that the
respondent had surreptitiously withdrawn himself from the scene of the accident to evade
detection or to conceal some clandestine matter that the plaintiff did not report to the police
which is a criminal offence.

The court agreed with the respondent. Lutta, J.A. “… the impression which would be created in
the minds of reasonable persons knowing the circumstances would be that there was something
discreditable about the respondent’s conduct. The innuendo was disparaging to the

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respondent’s character…”. It was held that the mere absence of the plaintiff’s picture or even a
direct reference to the plaintiff did not mean there was no defamation because any person who
knew the plaintiff and saw the picture could know that it was the plaintiff who was the subject of
the story.

Section 13 of Defamation Act

Where the defamatory statements refer to a group of people, it is not open to any member
of the group to say that the words relate to him personally unless there is something in the
publication or in the circumstances in which it is published which points to him/her.

In Knupffer v London Express Newspaper (1944) A C 176 The plaintiff, a London resident was
the head of the party known as Young Russians. The defendant published an article in their
Newspapers suggesting that the party was linked with Adolf Hitler and their intention was to
introduce Hitler's ideology into the county. The article did not mention the plaintiff expressly and
no references could be made regarding his identity. The plaintiff sued for defamation, alleging
that the words referred to him. It was held that the defendant was not liable in defamation. The
court stated " When the plaintiff is not named, the test which decides whether words used
referred to him is the question whether the words are such as would reasonably lead persons
acquainted with the plaintiff to believe that he was the person being referred to. In the present
case, the statement complained of is not made concerning a particular individual whether named
or unnamed but concerning a group of people spread over several countries including several
numbers. No facts were proved in evidence which would identify the appellant as the person
individually referred to."

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

The defamatory statement must be published to a person other than the plaintiff to make it
known to the others. Publication means the material / words must be made known either orally or
by broadcasting or as a statement in a book, newspaper, graffiti, etc.

Alexander Mwinyi v Lewa Conservancy HCCA No. 1039 of 2004

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The court stated that "It is trite law that no matter how defamatory the statement can be, there
can be no action, unless and until such a statement is communicated by the defendant to be a
person or persons other than himself." The publication must have been intended for the third
party or it must have been reasonably anticipated that the third party might come across the
information.

Theaker v Richardson [1962] 1 WLR 151

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

Remedies to Defamation

1. Damages
Are monetary compensation paid to the plaintiff by defendant because of finding of breach or
culpability by the defendant. In defamation damages can be either of two types:
i) Compensatory.
ii) Exemplary / punitive.
The court can grant either or both at the same time.

Compensatory damages are made to make good the harm suffered by the plaintiff in his/her
reputation. They can either be special or general damages.

Special damages are awarded after the exact financial loss suffered by plaintiff because of the
defamatory words is proved. The law is that the plaintiff must first allege that she/he suffered
special loss and then prove by way of production of documents.

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Section 16 (A) of the Defamation Act which empowers the court to access the amount of general
damage payable such amount as it may deem just. Therefore, general damages depend on the
court’s own assessment as what it considers sufficient to make good the harm suffered by
plaintiff because of the defamation.

Aggravated damages are additional damages awarded to a plaintiff for the aggravated harm
caused by the defendant’s conduct, such as humiliation, distress, or insult, beyond the harm that
would naturally flow from the wrongful act.

Punitive damages, also known as exemplary damages, are awarded to punish the defendant for
outrageous conduct and / or to reform or deter the defendant and others from engaging in
conduct like that which formed the basis of the lawsuit. All their purpose is not compensatory,
the plaintiff receives all or some of the punitive damages awarded. The court will award them to
avert under compensation and to redress for undetectable torts and to take away some strain from
the criminal justice system.

It is therefore said that general damages in defamation claims are at large. Despite this, courts
have developed general guidelines for assessing damages although there is no limit as to what
may be considered if it is relevant.

In Johnstone Evans Gicheru v Andrew Morton & Another CA 1149 2.00

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

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 The court considered the following factors relevant:
i. The appellant was blameless.
ii. The false statements were without foundation.
iii. The allegations were in print and therefore in a permanent form that could be accessed for
generations.

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

2. Injunction
It is an equitable remedy that a court may grant where it appears that the defendant is likely to
continue with the publication of the defamatory material. The effect of the order of injunction is
to stop any further damage to the plaintiff’s reputation. It may be granted either as a temporarily
order or permanent order.

Where the plaintiff files a case in relation to the defamation, the plaintiff may also seek an order
of temporary injunction to stop any other further publication before the main suit is heard or
determined. The plaintiff may seek that order ex parte before the defendant makes an
appearance in the proceedings. The Civil Procedure Rules provides that ex parte injunctions can
only last for 14 days unless otherwise confirmed by court following an inter partes hearing.

When the suit is concluded and if the plaintiff has established sufficient grounds, then, the court
may issue a permanent injunction, whose effect to permanently ban the defendant from
publishing the defamatory material. The two remedies can be awarded together.

The landmark case in this subject remains the case of Giella vs. Cassman Brown & Company
Limited. This case is frequently cited for the principles laid down regarding the granting of a
temporary injunction which may be summarized as follows:

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 1. Existence of prima facie case with Probability of Success:
The court must assess the evidence on whether the plaintiff has a legal right that is being
infringed upon or is in immediate danger of infringement.

"Prima facie" is a Latin term meaning "at first sight" or "on its face." In legal contexts, a
prima facie case refers to the establishment of a legally sufficient case or claim that, if
uncontested, would be sufficient to support a judgment in favor of the party presenting
the case. It is the minimum amount of evidence required to shift the burden of proof to
the opposing party.

To establish a prima facie case, a party must typically demonstrate the existence of
certain essential elements required by law for the claim or cause of action. These
elements vary depending on the nature of the case, but generally include things like
injury, damages, breach of duty, etc.

In presenting a prima facie case, the evidence provided is assumed to be true unless
contradicted or rebutted by the opposing party. Once a prima facie case is established, the
burden of proof shifts to the opposing party to provide evidence to the contrary. If they
fail to do so, the party presenting the prima facie case may prevail.

In McDonnell Douglas Corp. v. Green (1973) the Supreme Court established a

framework for analysing claims of employment discrimination under Title VII of the
Civil Rights Act of 1964. The Court held that a plaintiff could establish a prima facie
case of discrimination by showing that they belong to a protected class, applied, and were
qualified for a job, were rejected, and that the position remained open or was filled by
someone outside the protected class.

Texas Department of Community Affairs v. Burdine (1981) further elaborated on the

framework established in McDonnell Douglas. The Court clarified that once a plaintiff
establishes a prima facie case of discrimination, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the adverse employment action. If

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 the defendant meets this burden, the plaintiff must then show that the proffered reason is
pretextual.

2. Irreparable Harm
Another critical issue is whether the applicant would suffer irreparable harm that cannot
be compensated adequately in damages if the injunction is not granted.

3. Balance of Convenience
The court needs to determine where the "balance of convenience" lies. This concept
involves a consideration of which party would suffer the most harm from the granting or
withholding of the injunction. The court is tasked with balancing the interests of both
parties to decide in whose favor to tip the scales.

"Balance of inconvenience" is a legal principle used in cases where a court must decide
whether to grant an injunction or other equitable relief. It refers to the weighing of the
harm or inconvenience that would be suffered by each party if the court were to grant or
deny the requested relief.

Courts consider various factors when assessing the balance of inconvenience, including
the severity of the harm or loss suffered by each party, the likelihood of success on the
merits, the public interest, and any hardship that granting or denying the relief may cause.

Ultimately, the balance of inconvenience is a matter of judicial discretion, and courts

have broad discretion in weighing the relevant factors and determining the appropriate
outcome.

In American Cyanamid Co. v. Ethicon Ltd. (1975) the House of Lords established a test
for determining whether to grant an interlocutory injunction. The court must consider
whether there is a serious question to be tried, whether damages would be an adequate

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 remedy for the plaintiff if they succeed at trial, and where the balance of convenience
lies.

In Mareva Compania Naviera SA v. International Bulk Carriers SA (The Mareva) (1975)

the English Court of Appeal recognized the Mareva injunction, which allows a plaintiff to
freeze a defendant's assets pending trial. The court must consider the balance of
convenience, weighing the risk of injustice to the plaintiff if the assets are not frozen
against the risk of injustice to the defendant if they are.

In Doherty v. Allman (1878) the House of Lords held that in deciding whether to grant an
interlocutory injunction, the court should consider whether the inconvenience or hardship
suffered by one party would be disproportionately greater than that suffered by the other
party.

Giella vs Cassman Brown & Company Limited, did not set the principles as conditions, but as
guiding factors that the court must consider before exercising its discretion to grant an
injunction. Understanding and applying these principles often requires the careful evaluation of
facts and presentation of the case.

An injunction is a legal remedy in the form of a court order that compels a party to do or to
refrain from doing specific acts. They are equitable reliefs that can be tailored to the
circumstances of the case at hand.

It is a preventive measure, used to protect against future harm. In Kenya, as in many common
law jurisdictions, there are mainly two types of injunctions: interim (temporary) injunctions and
perpetual (permanent) injunctions.

The grant of an injunction is typically at the discretion of the court, and there are certain
conditions under which a court might exercise this discretion, chiefly hinging on whether the
grant or refusal of an injunction would do more justice between the parties.

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Types of injunctions:

Injunctions are categorized primarily based on their duration and purpose. Below are the main
types of injunctions that can be granted under equitable remedies:

i. Temporary Injunction (Interlocutory Injunction)

This is a provisional measure taken to maintain the status quo until the final
determination of the case. It is meant to prevent irreparable harm from being done to
the party seeking the injunction during the litigation process.

Ex parte Interim Injunction

A subset of interim injunctions, this can be granted without the presence or
knowledge of the other party. It is usually given when there is an urgent need for
immediate action to prevent irreparable harm. It is generally granted for a very short
period and the matter must thereafter be decided in the presence of both parties.

ii. Permanent Injunction.

Once the case has been heard and it is determined that a party's legal rights have been
infringed, a permanent injunction may be granted. This serves to prevent the
defendant from engaging in actions that violate the plaintiff’s rights indefinitely.

iii. Mandatory Injunction

Unlike prohibitory injunctions that restrain a party from doing something, a
mandatory injunction requires a party to take a specific action. This type of injunction
may be temporary or permanent and is used in situations where merely preserving the
status quo is insufficient for preventing harm or injustice.

iv. Prohibitory Injunction

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 This common type of injunction stops a party from undertaking certain actions. It is
used to prevent a party from committing an act that would be injurious to the other
party's rights.

v. Restorative Injunction
Like a mandatory injunction, a restorative injunction not only compels a party to act
but also to undo damage that has already been done.
vi. Anton Piller Order
This is a type of injunction that allows the plaintiff to search the premises of the
defendant and seize evidence without warning. This is intended to prevent the
destruction of relevant evidence. It is an extraordinary remedy and is equivalent to
what is known as a 'search order' in English law.

vii. Mareva Injunction (Freezing Order)

This type of injunction freezes the assets of a defendant to prevent them from being
removed from the jurisdiction or dissipated. It ensures that funds or assets remain
available for satisfaction of a future judgment.

viii. Quia Timet Injunction

This is a preventative injunction granted where the plaintiff fears that a legal or
equitable right is threatened by the impending conduct of the defendant.

Defences to Defamation

The defences are set out in the Defamation Act Cap 36.

i) Justification
Section 14 of the Defamation Act is to the effect of that where the statement complained of is the
truth, then it provides a complete defence. That statement does not have to be literally true it has

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only to be substantially true. Where the allegations are not true, then there shall be no defence of
justification.

Peter Waithaka Chege v George Mbuguss & Another HCC No. 1994 of 1999
The defendants published in their newspaper an article that was held to be defamatory. They
pleaded justification. They had alleged that the plaintiff as editor of a newspaper was
incompetent and unqualified for the job. They stated that the plaintiff consistently made spelling
and grammatical errors in his editing and that he only remained in his job because of some other
influence. The plaintiff produced evidence to show his qualifications as an editor and the court
found that the defendant’s statement was false and therefore justification was not available as a
defence.

In Daniel v Polly, where Daniel accused Polly of theft after her conviction, the court ruled in
Daniel’s favor due to the statement's truthfulness.

In Grobbelaar v News Group Newspapers [2002] UKHL 40, [2002] 1 WLR 3024 The plaintiff
was a professional footballer who had played for Liverpool FC and Southampton FC. He sued
the defendant for publishing an article which had suggested that he had conspired with certain
persons to fix certain matches for money. The defendant pleaded justification. The plaintiff
called evidence about the games in question to support his argument that he had never
deliberately let in any goals.
It was held that justification was not available for the defendant because it was not possible for
them to prove the truth of the statement because it would have been difficult to establish that the
plaintiff had deliberately underperformed.
Hobhouse LJ stated that " The law is that so far as the issue of justification is concerned, the
publisher of the defamatory statement must allege and prove that the statement was substantially
true nor more nor less."

ii) Fair Comment

Section 15 of the Defamation Act:

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

Consequently, it is not a requirement to prove that every part of the statement in question is a
matter of fact. The key elements to this defence are:

- The statement in question must be a comment, not an assertion of fact.

- The statement in question must be based on probable facts.
- The statement in question must be honestly believed.

Example:

A publication to the effect “in my opinion the minister killed his wife” will be defamatory if not
based on facts.

In contrast, a publication to the effect “there is serious corruption going on in the minister’s
docket” could be protected by this defence if there are related facts which could reasonably
support the position.

iii) Privilege
a. Absolute Privilege
Section 6 of the Defamation Act:
Newspaper reports of judicial proceedings.
A fair and accurate report in any newspaper of proceedings heard before any court exercising
judicial authority within Kenya shall be absolutely privileged. Provided that nothing in this
section shall authorize the publication of any blasphemous, seditious, or indecent matter.

b. Qualified Privilege
Section 7 of the Defamation Act.

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Qualified privilege of newspapers
(1) Subject to the provisions of this section, the publication in a newspaper of any such report or
other matter as is mentioned in the Schedule to this Act shall be privileged unless such
publication is proved to be made with malice.

(2) In an action for libel in respect of the publication of any such report or matter as is mentioned
in Part II of the Schedule to this Act, the provisions of this section shall not be a defence if it is
proved that the defendant has been requested by the plaintiff to publish, in the newspaper in
which the original publication was made, a reasonable letter or statement by way of explanation
or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate
or not reasonable having regard to all the circumstances.

(3) Nothing in this section shall be construed as protecting the publication of any matter the
publication of which is prohibited by law, or of any matter which is not of public concern and the
publication of which is not for the public benefit.

This defence applies to occasions where the journalist has a moral or social duty to report, and
the reader / audience has an interest to receive the report (public interest). The report must be fair
and accurate, and the defendant must prove that there was no malice in the publication.

iv. Consent

If the subject of the statement consents to its publication, they cannot claim defamation. If a
person agrees to a newspaper publishing an article about her past bankruptcy, she cannot later
sue for defamation based on that article. In Alice v. Daily Gazette, the court ruled in favor of the
newspaper because Alice had consented to the article's publication.

v. Statute of Limitations

A defamation lawsuit must be filed within a specified time (within 1 year) after the incident that
gave rise to the claim. If the plaintiff waits too long to file a lawsuit, it may be barred by the
statute of limitations. In Brown v. Media Corp, the court dismissed the defamation claim
because it was filed after the statutory period had expired.

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vi. Statutory Defences

Some defences are prescribed by law, e.g., Anti-SLAPP (Strategic Lawsuit Against Public
Participation) statutes. These protect defendants from frivolous defamation claims. Anti-SLAPP
laws vary by jurisdiction but aim to prevent lawsuits that stifle free speech. In Smith v. Blogger,
the court applied the Anti-SLAPP statute to dismiss the defamation suit against the blogger.

vii. An apology

The difficulty with an apology is that often a defendant will not want to offer a formal apology
through fear that it will be treated as an admission of liability.

The defendant can mitigate the damage (and potentially influence the damages awarded) by
issuing an apology. There are several instances where an apology might be appropriate or
strategically beneficial:

. Prompt Apology: Issuing an apology promptly after realizing a statement is defamatory may
help to limit the harm to the aggrieved party's reputation and can demonstrate that the defendant
did not intend to cause lasting harm.

. Offer of Amends: Under the Defamation Act, if a defendant makes an offer to make amends
before the case goes to trial, this may serve to mitigate damages. The offer can include an
apology and may be accompanied by a correction of the false statement and an offer to pay
compensation appropriate to the harm caused.

. Part of Settlement: An apology may form part of the settlement negotiations in a defamation
case. Both parties may agree that an apology, along with other forms of compensation, can settle
the matter without proceeding to a full trial.

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It's important to note that simply offering an apology does not automatically shield a defendant
from liability or from the payment of damages. The effectiveness of an apology in legal terms
will depend on several factors, such as the sincerity, timing, and the way it is communicated.

In Kenya, alternative justice systems are legally recognised, and courts may encourage parties
who take genuine steps to resolve disputes amicably. However, when making apology for
defamation, it is imperative to do so under legal advice. Apologies must be carefully worded to
prevent further legal implications or admissions of guilt that could be detrimental to the
defendant's defence.

According to Kenyan defamation laws, issuing an apology after receiving a complaint or during
trial can be grounds for reducing damages. Failure to apologize may lead to court-ordered
apologies or retractions of defamatory content, with the prominence matching that of the original
publication.

Additionally, courts may grant damages instead of retractions or apologies, especially if a

significant time has passed since the initial publication.

The Kenyan legal framework emphasizes the importance of balancing individual reputation
protection with freedom of expression, highlighting fair comment defences and the increasing
trend of substantial damages awarded in defamation cases.

This reflects a legal environment where apologies play a role in mitigating harm caused by
defamatory statements while also underlining the significance of accurate reporting and fair
comment within the realm of public interest.

ix. Retraction

An order requiring the defendant to publish a summary of the judgment. Under Section 12 of the
Defamation Act 2013, the court has the power to order the defendant to publish a summary of the
judgment. Section 12 of the Defamation Act 2013, states:

“(1) Where a court gives judgment for the claimant in an action for defamation the court may
order the defendant to publish a summary of the judgment…”

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An order requiring an operator of a website to remove the defamatory statement.

Under Section 13 of the Defamation Act 2013, the court has the power to order the operator of a
website to remove the defamatory statement or make an order to prevent the further distribution
of the statement.

Section 13 of the Defamation Act 2013, states:

“(1) Where a court gives judgment for the claimant in an action for defamation the court may
order-

the operator of a website on which the defamatory statement is posted to remove the statement,
or

any person who was not the author, editor, or publisher of the defamatory statement to stop
distributing, selling, or exhibiting material containing the statement.”

This is an unusual remedy and tends to be used in cases where a defendant fails to engage with
proceedings, or where it is not possible to identify the defendant.

Invalidation of Section 194 of the Penal Code (on criminal defamation)

Jacqueline Okuta & Another v AG & 2 Others (2017) eKLR

The petitioners were charged with criminal defamation for statements made on Facebook page
titled ‘Buyer-Beware-Kenya’. The charges were brought under Section 194 of the Penal Code
which criminalized defamatory statements published through various means i.e., print or writing.
A conviction under Section 194 was punishable with a prison sentence of up to 2 years. The

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petitioners challenged the constitutionality of the stated section arguing that it wasn’t a
reasonable restriction of the right to freedom of expression.

The High Court (Justice Mativo) found that the provision was disproportionate and unjustifiable
limitation pf freedom of expression and was therefore incompatible with the constitution because
the prospects of up to2 years jail term for defamation was unnecessary, excessive, and
unjustifiable in an open and democratic society.

Notwithstanding that constitutional invalidation, the publication of false information which is

likely to harm the reputation of a person remains a criminal offense under section 23 of the
Computer Misuse and Cybercrimes Act. To succeed under that section, the prosecution must
prove on a standard beyond reasonable doubt that the accused person did the act of publishing
(actus rea) and had the intent (mens rea) i.e., that the accused knew the information in question
was false and proceeded to publish it with the intention of harming the person’s reputation.

Effect of Death of parties in Defamation

Defamation actions do not survive the death of a party. The cause of action abates upon the
plaintiff’s death.

Personal actions, i.e., actions where the relief sought is personal to the deceased or the rights are
intimately connected of the individuality of the deceased (e.g., defamation), the right to sue will
not survive to or against the legal representative. The Latin maxim actio personalis moritur cum
persona – (a personal action dies with the person) applies.

The exception is where a suit for defamation has resulted in a decree in favour of the plaintiff –
respondent. In such a case the cause of action has merged in the decree and the decretal amount
forms part of his estate. An appeal from a decree by the defendant becomes a question of benefit

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to the estate of the plaintiff – respondent which his legal representatives are entitled to uphold
and defend. They are therefore entitled to be substituted in the appeal in the place of deceased
respondent – plaintiff.

Under the doctrine of abatement, defamation claims do not survive the death of the defaming
person. The rational to this doctrine is rooted in the idea that it would be unfair to allow legal
action to continue against a deceased person. Since the deceased person is no longer able to
defend themselves or be held accountable for their actions, it is considered unjust to proceed with
the lawsuit (see Hon. Emmanuel Karisa Maitha v the Nation Media Group Ltd & Another
eKLR 2007; Also see section 2 (1) of the Law Reform Act (Cap 25 Laws of Kenya).

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