DEFAMATION

• Defined as publishing false and defamatory

statement concerning another person without
lawful justification
• in Kenya the law on defamation is derived
from statute i.e. the Defamation Act Cap 36 as
well as the common law.
• -two forms
• 1) Libel-the defamatory statement is made in
some permanent and visible form e.g. writing,
printing, pictures or effigies.
• 2) Slander-the statement is made in spoken
words or in some other transient form
whether visible or audible e.g. gestures.
• However s 8(1) of DA creates an exception-
that “for the purposes of the law of libel and
slander, the publication of words by wireless
broadcasting shall be treated as publication in
a permanent form.”
• Is there a rational basis for the distinction
between libel and slander?
• libel is said to be actionable per se. What does
this mean?
• In contrast, with 4 exceptions, slander requires
proof of actual damage on the part of the
plaintiff e.g. loss of business, loss of a job
• 1) Imputation of criminal conduct-where the
defendant imputes criminal conduct punishable
by imprisonment, the slander is actionable per
se.
• In Gray v Jones [1939] 1 All ER 795 the
defendant who said to the plaintiff “you are a
convicted person. I will not have you here” was
held liable in slander even without proof that
the plaintiff was put in jeopardy of prosecution.
This is because the misconduct alleged is so
serious that other people were likely to shun the
plaintiff and exclude them from their society.
• 2) Imputation of certain contagious diseases
e.g. orally accusing someone of having some
venereal disease or AIDS
• 3) Imputation of unchastity against a woman
is actionable per se.
See section 4 Defamation Act “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.”
• 4) Imputation of unfitness in business-
• see section 3 Defamation Act: “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 on by
him at the time of the 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.”
Constitutional underpinnings
• In K L v Standard Limited [2014] eKLR Odunga J
stated as follows (para 58):
• “…the law of defamation is underpinned in our
Constitution. Under article 32(1) of the
Constitution every person has the right to
freedom of conscience, religion, thought, belief
and opinion. This Article makes it clear that the
freedom to express one’s opinion is a fundamental
freedom enshrined in the Constitution. Article
33(1) (a) provides that every person has the right
to freedom of expression, which includes freedom
to seek, receive or impart information or ideas…
• …However, clause (3) provides that in the
exercise of the right to freedom of expression,
every person shall respect the rights and
reputation of others. This, in my view, is the
constitutional fulcrum of the law of
defamation. Accordingly, the law of
defamation is not just anchored on a
statutory enactment but has a constitutional
underpinning.”
 Elements of defamation

• The statement in question must be

defamatory
• The statement must refer to the plaintiff
• The statement must be published to a person
other than the plaintiff
 1. The statement in question must be
defamatory
• it must be one which injures a person’s
reputation
• the traditional test as laid down in the case of
Parmiter v. Coupland (1840) 6 M & W 105 is to
ask whether the words complained of were
calculated to injure the reputation of another
by exposing him to hatred, contempt or
ridicule.
• Lord Atkin suggested a broader test in the case
of Sim v Stretch (1936) 52 TLR 669 at 671
when he stated: “The conventional phrase
exposing the plaintiff to ‘hatred, ridicule or
contempt’ is probably too narrow… 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?”
• How have these 2 approaches been adopted
in Kenya?
• In J Kudwoli & another v Eureka Educational and
Training Consultants & 2 others [1993] eKLR
Kuloba J alluded to the futility of attempting to
define defamation or defamatory matter as follows:
• “To attempt to answer the question “What is
defamation?’ or to define the expression
“defamatory matter”, is to embark upon a voyage
to juristic and scholastic perdition. Well-intended
ambitions of eminent judges and legal scholars of
profound erudition to define these terms have
resulted in many a formulae for describing or
defining them without rendering any wholly
satisfactory definition or description.”
• Father Samuel Waweru v Samuel Mburu & The
Standard Ltd. HCCC No 208 of 2002
• There is no wholly satisfactory definition of a
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 plaintiff? And (3) would the words tend to
expose the Plaintiff to hatred, contempt or ridicule?
• Seems wider than the traditional English law
approach.
• Musikari Kombo v Royal Media Services Limited [2018]
eKLR at para 24, the CA stated:
• 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.”
Reputation v ridicule v abuse v insults: what is protected by
law?
• Musikari Kombo v Royal Media Services Limited [2018] eKLR
at par 20 The CA stated:

• The law of defamation is concerned with the protection of a

person’s reputation. Patrick O'Callaghan in the Common Law
Series: The Law of Tort at paragraph 25.1 expressed himself
in the following manner: “The law of defamation, or, more
accurately, the law of libel and slander, is concerned with
the protection of reputation: 'As a general rule, English law
gives effect to the ninth commandment that a man shall not
speak evil falsely of his neighbour. It supplies a temporal
sanction …’ Defamation protects a person's reputation that
is the estimation in which he is held by others; it does not
protect a person's opinion of himself nor his character. …”
• insults and jokes might bruise the plaintiff’s
ego, they may not lower his estimation in the
eyes of others.
• E.g. in Berkoff v Burchill [1996] 4 All ER 1008,
the defendant, a journalist, wrote that the
plaintiff, an actor and film director, was
“hideously ugly”. It was held that such words
were capable of being defamatory.
Neill LJ stated:

• 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 his trade or business or
professional activity, if they hold him in
contempt, scorn or ridicule or tend to exclude
him from society. On the other hand, 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
actually repulsive. It seems to me that to say
this of someone in the public eye who makes
his living…, as an actor, is capable of lowering
his standing in the estimation of the public
and of making him an object of ridicule.”
 Phillips LJ agreed with Neill and stated:

• The law of defamation protects reputation,

and reputation is not generally dependent
upon physical appearance. Exceptionally
there has been a handful of cases where
words have been held defamatory,
notwithstanding that they do not attack
character or personality… the question has to
be considered in the light of the actual words
used and the circumstances in which they are
used.
• There are many ways of indicating that a
person is hideously ugly, ranging from a simple
statement of opinion to that effect, which
could never be defamatory, to words plainly
intended to convey that message by way of
ridicule. The words used in this case fall in the
latter category.”
Millett LJ dissented:

• It is common experience that ugly people have

satisfactory social lives… and it is a popular
belief the truth of which I am unable to vouch
that ugly men are particularly attractive to
women. I have no doubt that the words
complained of were intended to ridicule the
plaintiff, but I do not think they made him
ridiculous or lowered his reputation in the eyes
of ordinary people. The line between mockery
and defamation may sometime be difficult to
draw… it is one thing to ridicule a man it is
Value is in a “good name”.
• Mativo J: “Perhaps it may be necessary to recall
the words of Shakespeare cited by counsel for the
Respondent that "Good name in man and woman,
is the immediate jewel of their souls. Who steals
my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to
thousands. But he that filches from me my good
name robs me of that which not enriches him and
makes me poor indeed”
• Cited in Joseph Njogu Kamunge v Charles Muriuki
Gachari [2016] eKLR
The judge defined defamatory imputation as follows:

“The elements of the tort of defamation are that

the words must be defamatory in that they
must tend to lower the plaintiffs reputation in
the estimation of right minded persons in the
society or they must tend to cause the plaintiff
to be shunned or avoided by other persons. In
other words, the words complained of must be
shown to have injured the reputation, character
or dignity of the plaintiff. Abusive words may
not be defamatory per se...”
 Other examples of publications found to be defamatory

• alleging dishonesty see e.g. Machira v. Wangethi

Mwangi & Nation Newspapers Ltd CACA
179/1997; JP Machira t/a Machira & Co.
Advocates HCCC No 612 of 1996. (Allegations of
theft of client’s money by an advocate)
• Daniel Musinga t/a Musinga & Co. Advocates v
Nation Newspapers Ltd HC Civil Case No. 102 of
2000 reported as [2005] eKLR (allegation that an
advocate was unlawfully withholding money due
to a client)(elements of defamation).
• Keah v Mburu [1982] KLR 1(allegations of
dishonesty, corruption, inefficiency, disloyalty
to employer and tribalism.)
• Mathew Kyalo Mbobu v Rose Mbithe Ndetei
Nairobi High Court Civil Suit No. 155 of 2004.
(allegations of interfering with the judicial
process)
• Father Samuel Waweru v Samuel Mburu & The
Standard Ltd. HCCC No 208 of 2002
• alleging that someone is insolvent; see Busia
Teachers Co-operative Credit and Savings
Society Ltd & another v Nation Media Group
Ltd [2004] 1 KLR 603
• If the words complained of affect the plaintiff’s
reputation among a particular section of the
community and not in the eyes of right thinking
members of the community then no defamation
will have been committed. Why?
• In Byrne v Dean [1937] 1 KB 818 the plaintiff was a
member of a golf club operated by the defendants.
The defendants allowed their patrons to engage in
some form of gambling that though illegal under
the law was widely engaged in by members of the
public without repercussions.
• Someone informed the police of the practice
whereupon the police removed the machines
that were used for the gambling. A note was
put on the club’s wall suggesting that it was
the plaintiff who had tipped off the police.
The plaintiff alleged that the allegation was
meant to paint him as disloyal to his fellow
members who might even avoid him
altogether.
• It was held that even though the note might
have the effect complained of that effect
would only occur within the club itself and not
with the general public. Slesser LJ stated that:
“In my view, to say or to allege of a man that
he has reported certain acts, wrongful in law
to the police cannot possibly be said to be
defamatory of him in the minds of the general
public.”
 Innuendo

• Defamation by inference or implication

• Set out in the cases of Lewis v Daily Telegraph
[1964] AC 234 and Cassidy v Daily Mirror
Newspapers Ltd [1929] 2 KB 331
• Application in Kenya; Nation Newspapers
Limited v Chesire [1984] KLR 156 (what
happened in this case?)
• East African Standard v Gitau [1970] EA 678 (the
case followed by the CA in the Chesire case)
 The Standard Ltd v Scholastica Omondi & Another High Court Civil Appeal No 772 of 2001

• The appellant in the case published a

photograph of the respondent’s son with his
uncle on two separate occasions. In the first
instance the photograph was accompanied by
a caption that ran: “THRILL: Swings are a
source of great excitement for children as a
plaything. But they can be dangerous if not
used properly.”
• In the second instance the same photograph
was published but this time with a caption
that read: “FUN: Children enjoy the company
of both parents. Break-ups leave them
completely devastated.” In this second
instance the photograph was used in the
context of a feature story entitled “The Pain of
Divorce” which explored the effects of divorce.
• None of the persons in the photographs was
named and it was apparent that the use was
possibly for illustrative purposes. It was held that
publishing the picture in the middle of an article
discussing divorce and setting out a caption that
alluded to the effects of divorce suggested that
the 2nd respondent’s parents had “broken up”
(sic). This was defamatory to the 1st respondent
who was the mother to the 2nd respondent.
 2. The statement must refer to the plaintiff

• The plaintiff must be identified as the person

defamed-this identification may be expressly
by name or description or impliedly by
reasonable inference.
• The test is whether the persons reading or
hearing the statement would believe that it
referred to the plaintiff.
E Hulton & Co v Jones [1910] AC 20
• the plaintiff, Artemus Jones was a barrister.
He sued the defendants in respect of an article
appearing in their newspaper. The article
referred to a certain Artemus Jones who was
engaged in certain immoral acts and that he
lived with a woman who was not his wife.
• defendants argued that the Artemus Jones
they had referred to was a fictional character
they had invented and had no relation
whatsoever to the plaintiff. The plaintiff was
actually well known to the defendant.
• The defendant was held liable; a reasonable
person would know that it was the plaintiff
and not some fictional character that was
being referred to in the article.
• East African Standard v Gitau [1970] EA 678; D
published a picture of the plaintiff’s damaged
car with a caption which described the scene
of the accident and referred to the driver in
defamatory terms. Those who knew the car
would believe that it was P who was being
referred to.
 The Standard Ltd v Scholastica Omondi &
Another (supra)
• D had argued that the subjects of the photo
not having been named could not therefore
be identified. The court disagreed stating that
“it is quite obvious that the people who knew
the 2nd respondent would recognize him as the
son of the 1st respondent.”
• would a statement that refers to a group or
class of persons be defamatory e.g. a
statement that “all lawyers are thieves?”
• Generally no;
• An individual may also not claim successfully
unless there is something in the publication itself
or in the circumstances in which it was published
which points to the plaintiff
• Knupffer v London Express Newspapers [1944]
AC 116; where P, a London resident was the
head of a party know as Young Russians. The
defendants published an article in their
newspaper which suggested that the party was
linked with Adolf Hitler and that their intention
was to introduce Hitler’s ideology in the country.
• The article did not mention the plaintiff
expressly and no inferences could be made
leading to his identity. The plaintiff sued for
defamation alleging that the words referred to
him. The party had only 24 members in
Britain.
• The suit was dismissed; Viscount Simon LC
stated:
• “Where the plaintiff is not named, the test which
decides whether the words used refer to him is
the question whether the words are such as would
reasonably lead persons acquainted with the
plaintiff to believe he was the person 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 and
including several numbers. No facts were proved
in evidence which could identify the appellant as
the person individually referred to.”
• -in certain cases an allegation may be
understood to refer to each member of a body
where they are few in number and are closely
associated in their common activity. In Ajuang
v. Magak HC Civil Cases Numbers 82, 157,
174-7 it was held that a reference to “the
present officials” of a certain organization who
were six in number related to them personally.
 3. The statement must be published

• words complained must have been published

to a person other than the plaintiff.
Publication means communication of the
words or defamatory material to a third
person e.g. oral conversation, letter,
newspaper, book, graffiti, TV or radio
broadcast etc.
• Alexander Munyi v Lewa Conservancy High
Court Civil Appeal No 1039 of 2004 (Nairobi)
(Unreported) the court reiterated the
requirement of publication by stating: “It is
trite law that no matter how defamatory a
statement may be about a person, there can be
no action until, and unless, such a statement is
communicated by the defendant to a person or
persons other than the complainant himself.”
• publication must have been intended to be seen
or heard by the 3rd party or reasonably
anticipated to be seen or heard by the 3rd party.
• 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 purposes of distributing election
addresses. It was held that there was a
publication to a third party.
• every time a defamatory statement is
repeated there is a republication of the same
leading to a fresh cause of action on each of
those occasions. See Slipper v BBC [1991] 1
QB 283; the plaintiff, a retired police officer,
had been the subject of a TV programme
about attempts to recapture a fugitive for
rendition to Britain from Brazil. He alleged
that the programme portrayed him as an
‘incompetent buffoon’.
• The defendant had shown a preview of the
programme to some journalists who published
their reviews in newspapers and magazines.
Defendants argued that they were not liable
for republication by third parties not acting as
their agents. It was held that the defendant
might be liable in situations where the
repeated publications were reasonably
foreseeable.
• What of internet sites and web pages?-every
time an internet user accesses defamatory
material posted on the internet service
provider’s newsgroup or stored in a
newspaper’s internet archive, there is a fresh
publication giving rise to a new cause of
action.
 C. DEFENCES

• 1. Justification
• defendant can plead that the alleged libel or
slander is the truth. If this is so then it
provides a complete defence to a defamation
claim.
• The statement need not be literally true; it
only needs to be substantially true.
• Section 14 DA provides that:
In any 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 proved 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.
 Peter Waithaka Chege v George Mbuguss &
another HC Civil Case No 1994 of 1999
• Defendants published in their newspaper an article that
was held to be defamatory. They pleaded justification.
They had alleged that the plaintiff an editor with the
East African Standard was incompetent and unqualified
for his job. They stated that the plaintiff consistently
made spelling and grammatical errors in his editing and
that he only retained his job because of some other
influence. The court found that the allegations were
false. The plaintiff had produced evidence showing his
qualifications as an editor. Since the comments had no
element of truth in them the defence of justification
would not be available to the defendant.
• Kuloba J stated in Machira v EA Standard Ltd
HC Civil Suit No 612 of 1996 that: “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.”
 Grobbelaar v News Group Newspapers
[2002] UKHL 40, [2002] 1 WLR 3024
• the plaintiff, a professional footballer who had
played in goal for Liverpool FC and Southampton FC
sued the defendants for publishing an article which
suggested that the plaintiff had conspired with
certain persons to fix certain matches in return for
payment. The defendants pleaded justification.
• The plaintiff called evidence and presented videos of
the games in question to support his argument that
he had never deliberately let in any goals. The
defence of justification requires that the defendant
must show that the allegations are substantially true.
• In this case it was not possible for the
defendants to prove the truth of their
statements because it would have been
difficult to establish that the plaintiff had
deliberately underperformed in the games.
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 statements were
substantially true, no more no less…”
 2. Fair Comment on a matter of public interest

• defendant can plead that the words complained of

are a comment, are fair and are on a matter of public
interest.
• section 15 DA provides that: “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.”
• Musinga v Nation Newspapers Ltd Civil Case
No 102 0f 2000; the defendant had published
an article that suggested that the plaintiff a
practicing advocate had unlawfully retained a
client’s compensation money paid to him by a
judgment debtor. The court found this not to
be true and held that a defence of fair
comment did not avail the defendants because
the allegations were factually incorrect.
Mong’are t/a Gekong’a & Momanyi Advocates
v Standard Ltd Civil Appeal No 233 of 2000.
• On similar facts as the Musinga case it was found
that the defendant had published a false story
alleging that the plaintiff had refused to pay out
decretal sums due to his clients on a suit. While
indeed judgment had been entered for the clients
in the subject suit the same had subsequently been
set aside hence there could not possibly be any
money payable to the plaintiff’s clients. Since the
allegation was factually incorrect the defendant
could not plead the defence of fair comment on a
matter of public interest.
 3. Privilege

• 2 types-absolute and qualified

• Absolute-affords a complete defence in that
no proceedings can be founded on a
statement which is absolutely privileged.
• Qualified-partial defence only-if a defendant
proves that the statement enjoyed qualified
privilege he can still be liable if it is shown that
the publication was actuated by malice.
I. Absolute privilege

• (a) Parliamentary-section 4 National Assembly

(Powers and Privileges) Act cap 6
• “No civil or criminal proceedings shall be
instituted against any member for words
spoken before, or written in a report to, the
Assembly or a committee, or by reason of any
matter or thing brought by him therein by
petit ion, Bill, resolution, motion or
otherwise.”
• (b) Judicial-section 6 Judicature Act cap 8
• No judge or magistrate and no other person acting
judicially, shall be liable to be sued in a civil court for an
act done or ordered by him in the discharge of his judicial
duty, whether or not within the limits of his jurisdiction,
provided he, at the time in good faith believed himself to
have jurisdiction to do or order the act complained of; and
no officer of a court or other person bound to execute the
lawful warrant orders or other process of a judge or such
person shall be liable to be sued in any court for the
execution of a warrant, order or process which he would
have been bound to execute if within the jurisdiction of
the person issuing it.
• In common law judicial privilege extends to all words
uttered in judicial or quasi judicial proceedings.
• (c) Fair and accurate newspaper reports of
court proceedings-section 6 Defamation Act
“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.”
• The report need not be completely accurate.
In Gautama v East African Newspapers
(Nation Series) Ltd Civil Appeal No. 32 of 1971
an advocate claimed that he had been
defamed in a newspaper report of a judicial
ruling. It was held that the words complained
of were substantially accurate having regard to
the entire ruling and the background of the
proceedings.
• Where the report is mixed up with other
matter gathered outside of the context of
judicial proceedings the privilege does not
apply. In the case of Rogers Abisai t/a Abisai
& Company Advocates Civil Appeal No. 12 of
2003 (Court of Appeal Kisumu) it was held that
when the reporter mixed up his story with
public views obtained through interviews then
the s 6 defence is no longer available
II. Qualified privilege

• arises with respect to statements made in

discharge of some duty, public or private, and
to communications made between persons
sharing a common interest.
• Read section 7(1) DA and the Schedule
• III. Publication under order of the National
Assembly or the EALA-see section 9(1) DA
• IV. Publishing copies of parliamentary reports-
section 10 DA:
• V. Extracts from parliamentary reports; See s
11 DA:
• VI. Publication without malice/apology see s
12 DA
• VII. Unintentional defamation; See s 13 DA
 D. REMEDIES

• 1. Damages-can be compensatory or
exemplary/punitive
• I. Compensatory-meant to make good the
harm suffered by the plaintiff to his/her
reputation.
• They can be special or general damages.
• Special-exact sums spent in relation to the
defamation
General

• Starting point; s 16: “In any action for libel, the

court shall assess the amount of damages
payable in such amount as it may deem just:
Provided that where the libel is in respect of
an offence punishable by death the amount
assessed shall not be less than one million
shillings, and where the libel is in respect of an
offence punishable by imprisonment for a
term not less than three years the amount
assessed shall not be less than four hundred
thousand shillings. (emphasis added)
• GD depends on the court’s assessment of
what it considers to be sufficient to make good
the harm suffered by the plaintiff as a result of
loss of his reputation; such damages are thus
said to be at large.
• Generally depends on the court’s discretion
although some guidelines have been set out in
a number of cases
Johnson Evan Gicheru v Andrew Morton & another
Civil Appeal No 314 of 2000 (CA)

• P was a judge of the CA. D published a book

with a story imputing corrupt conduct on him.
Trial court awarded KShs 2.25m GD. P
appealed to have the sums enhanced. CA
awarded KShs 6m
• CA stated: “The damages in a libel case are at
large in the sense that the court may consider
any relevant factor in awarding damages
since there are generally no fixed principles
for such determination.” (emphasis added)
 Tunoi JA stated the following as his reasons:

• “The learned judge did not express her sense of the

iniquity of the respondents. Neither did she consider
the absolute blamelessness of the victim, the appellant.
It is absolutely clear that the false charges and
insinuations against the appellant are absolutely
without the slightly (sic) foundation. The allegations
are in print and they live on and they persist
permanently for generations to come because the
respondents have refused to expunge the offending
passages… the judges awards were based on incorrect
principle and were inadequate. The conduct of the
respondents prior to and during the trial and their
persistence in repeating the libel were relevant on this
point.”
Githinji JA cited with approval a passage from a decision
of the English CA in John v MGN Ltd. [1997] QB 586:

• In assessing the appropriate damages, for injury

to reputation the most important factor is the
gravity of the libel; the more closely it touches,
the plaintiff’s personal integrity, professional
reputation, honour, courage loyalty and the core
attributed of his personality, the more serious it is
likely to be. The extent of publication is also very
relevant: a libel published to millions has a
greater potential to cause damage than a libel
published to handful of people. (emphasis added)
Ochieng & 8 others v Standard Limited [2004] 1
KLR 225 (HC)
• the plaintiffs were all members of the same
family. They were respectively the father,
mother, brothers and sisters of one Aloyce
Obiero who had died in a plane crash. The
defendants had in an article in their newspaper
alleged that the plaintiffs had disinherited
Obiero’s widow by dividing up the property left
behind. They each sued the defendant for
defamation. The defendants were found liable as
the allegations were false and without factual
basis.
• In assessing damages the court sought
guidance in a decision by Pearson LJ in
McCarey v Associated Newspapers Ltd (No 2)
as quoted with approval by Lord Justice Otton
in Bennet & Others v Canadian Newspapers
Ltd (1997) EWCA Civ-815 (22nd January 1997)
where he said;
• “Compensatory damages in a case in which
they are at large, may include several different
kinds of compensation to the injured plaintiff.
They may include not only actual pecuniary
loss and anticipated pecuniary loss or social
disadvantages which may result, or may be
thought likely to result, from the wrong which
has been done. They may also include the
natural injury to his feelings-the natural grief
and distress which he may have felt at having
been spoken of in defamatory terms, and if
there has been any kind of high-handed,…
• …oppressive, insulting or contumelious
behaviour by the defendant which increases
the mental pain and suffering by the
defamation and may constitute injury to the
plaintiff’s pride and self-confidence, those are
proper elements to be taken into account in a
case where the damages are at large.”
Kiptanui v Mwaniki & Others HCCC No 42 of
1997 (HC)
• the court held that where it is said that
damages for compensating the plaintiff in a
defamation case are at large it means that the
court generally considers circumstances that
are relevant to the case.
• Juma, J stated that:
• “In assessing damages in an action for libel
one has to consider the particular
circumstances of each. One has to consider
the plaintiff’s position and standing in society,
the mode and extent of publication, the
apology if offered and at what time in the
proceedings. Then one has also to consider
the conduct of the defendants from the time
when the libel was published up to the time
the judgment is made.”
 Kipyator Nicholas Kiprono Biwott v George
Mbuguss & Kalamka Ltd
• the court in assessing compensatory damages
on account of defamation against a Member
of Parliament and a Minister of Government
considered the nature of allegations against
the plaintiff as relevant
• The allegations made against the plaintiff were
found to be serious since they related to
corruption, an offence that had significant
consequences were the plaintiff to be charged
and convicted.
• The accused in such a case would be liable for
imprisonment for more than 5 years, loss of
the right to hold public office for 7 years or
loss of the right to vote or a loss of any public
office held at the time of conviction.
• Some courts have suggested that there should
be limits as to what the court may consider in
considering GD in defamation cases
• E.g. Kubo J in Wasambo v The Standard
Limited High Court Civil Case No. 833 of 2000
stated that while there are general guiding
principles on the subject of assessment of
damages, the actual quantum to be awarded
in a given case depends heavily on the facts of
each case.
• In addition court must be alive to the need to
strike a balance between the plaintiff’s rights
and the principle of fairness. Thus “the legal
process must, for its own credibility, strike a
proper balance between demands made by
litigants and what is fair and reasonable in
given circumstances.”
• The judge adopted the observations found in
the cases of Thompson v Commissioner of
Police of the Metropolis and HSU v
Commissioner of Police of the Metropolis
[1997] 2 All ER 762 (at page 771):
• “Any legal process should yield a successful
plaintiff appropriate compensation, that is,
compensation which is neither too much not
too little …. No other result can be accepted as
just …. But it serves no public purpose to
encourage the plaintiffs to regard a successful
libel action, risky though the process
undoubtedly is, as a road to untaxed riches.
Nor is it healthy if any legal process fails to
command the respect of lawyer and layman
alike. (emphasis added)”
• Further caution was urged in the case of Julius
Orenge t/a ROA Otieno & Company Advocates
v The Standard Limited High Court Civil Case
No 918 of 2003 where Mugo J observed that
“damages awarded must make sense to the
general public and not cause outrage. An
award must not be given which is divorced
from reality considering the wrong done and
its effect on the claimant.”
Innuendo attracts less damages
• it being an inferential defamation, only persons
with special knowledge of the facts would know
that the plaintiff has been defamed as opposed
to defamation effected by the ordinary and
natural meaning of the words used.
• In The Standard Ltd v Scholastica Omondi &
Another, Nation Media Group v Chesire and East
African Standard v Gitau damages awarded in
the first instance were reduced on appeal
• In Nation Media Group v Chesire the court
reasoned that the matter complained of was
not far-fetched and that the effect on the
plaintiff’s reputation was not serious.
• In East African Standard v Gitau the court
justified the reduction of damages on the
ground that the extent of defamation was
slight as the matter complained of was only
known to persons with special knowledge.
• In The Standard Ltd v Scholastica Omondi &
Another the court reasoned that the matter
complained of was not “so extreme as to
attract a heavy award” and that only persons
who knew the plaintiff and her son would
know about the defamation. The court also
noted that the defendant in the case had
offered to apologise.
II. Exemplary damages

• awarded where the court considers that the

defendant’s conduct is such as to deserve
punishment.
• standard reference is the case of Rookes v
Barnard [1964] AC 1129 where it was held that
exemplary damages will be awarded where
there is oppressive, arbitrary or unconstitutional
action by servants of the Government or where
the defendant’s conduct was calculated to
procure him some benefit, not necessarily
financial, at the expense of the plaintiff.
• This case has been adopted in Kenya as the
standard reference for determination of
payment of exemplary damages. It was
followed in Obongo v Municipal Council of
Kisumu [1971] EA 91.
 The principles were considered in the Kiptanui
case (supra)
• “The conduct of the defendant, his conduct of
the case, and his state of mind are thus all
matters which the plaintiff may rely on as
aggravating the damages… In awarding
‘aggravated damage’ the natural indignation
of the court at the injury inflicted on the
plaintiff is a perfectly legitimate motive in
making a generous, rather than a more
moderate award to provide an adequate
solatium…
…that is because the injury to the plaintiff is
actually greater, and, as the result of the
conduct exciting the indignation, demands a
more generous solatium. (Citing Gatley on
Libel & Slander 8th Edition para. 1452)”
 Kipyator Nicholas Kiprono Biwott v George
Mbuguss & Kalamka Ltd (supra)
• the court considered the relevant elements
where a plea for aggravated damages is made:
the failure by the defendant to offer and/or
tender an apology; and the defendant’s
conduct after the suit is filed and when it is
heard (e.g. if the defendant persists in denying
the effect of the defamatory matter or in
asserting the truth of the publication malice
may be inferred).
 2. Injunction

• Is an equitable remedy that the court may

grant the plaintiff in situations where it is
shown that the defendant is continuing or is
likely to continue with the publication of the
defamatory matter.
• May be temporary or permanent
• Temporary awarded on usual principles of
injunction pending the hearing and
determination of a suit set out in Giella v
Cassman-Browne
The principles are
• First the plaintiff must show that he has a
prima facie case with a probability of success.
• Second, he must show that he will suffer
irreparable loss if the injunction is not
granted, such be a loss that could not be
remedied by payment of damages.
• Thirdly, he should lay material before court
that would allow the court to decide that the
balance of convenience lies in granting the
injunction in his favour.
• Because defamation cases generally impinge on
freedom of expression courts may go beyond
the Giella principles and demand more
concrete grounds before granting temporary
injunction e.g. In Cheserem v Immediate Media
Services [2000] KLR 187 it was held that an
interlocutory injunction only lies in the clearest
of cases because the a court would need to
balance out the interest of person in having
his/her reputation protected and the public
interest relating to freedom of expression.
See also Gilgil Hills Academy v The Standard Ltd
HCCC 88 of 2009 Maraga J stated:
“If this were an ordinary suit, what would be
required of me at this stage is to determine
whether, from its pleadings as well as its
counsel’s submissions, the plaintiff has made
out a prima facie case with a probability of
success and if so whether a denial of an
injunction will cause the plaintiff irreparable
loss which cannot be adequately compensated
by an award of damages...
...If the answer to these questions would be in
the affirmative, then the plaintiff would be
entitled to the injunction sought and vice
versa. This being a defamation cases, however,
an array of other factors fall for consideration.
Only two are relevant to this case. They are
the public interest in the matter and whether,
on the material before the court at this stage,
it is clear that the alleged defamatory
publication is true or not...
...On the factor of public interest it is trite law
that public interest demands that truth should
be out. For that reason, it is in the public
interest that individuals should possess the
right of free speech, and, indeed, that they
should exercise it without impediment. So that
that right is not whittled down, the jurisdiction
to grant an injunction at an interlocutory stage
is a delicate and special one and ought to be
exercised only in the clearest of cases.
 Media Council of Kenya v Eric Orina HCCC No
540 of 2012, Onyancha J stated
• “It is settled that the principle of law applicable in a
case seeking interim injunction are those laid down in
the case of Giella v Cassman Brown and Co. Ltd (1973)
EA 358... It is to be noted however, that in defamation
cases, the above principles are applied in a special
way. That is to say that the principles or conditions
are applied with the greatest of caution so that the
injunction sought is granted only in the clearest of
cases. The court has to be satisfied that the words or
matters complained of are clearly libellous and that
they are so manifestly defamatory that any verdict to
the contrary would likely be set aside as perverse.
 The court borrowed from Bonnard and Another v
Perryman (1891-4) All ER 965 – 968 where it was stated

• “It is obvious that the subject matter of an

action for defamation is so special as to require
exceptional caution in exercising the
jurisdiction to interfere by an injunction before
the trial of an action to prevent an anticipated
wrong. The right of free speech is one which is
for the public interest that individuals should
possess, and, indeed that they should exercise
it without impediment, so long as no wrongful
act is done; and unless an alleged libel is
untrue, there is no wrong committed;
...but, on the contrary, often a very wholesome
act is performed in the publication and
repetition of an alleged libel. Until it is clear
that an alleged libel is untrue, it is not clear
that any rights of all have been infringed; and
the importance of leaving free speech
unfettered is a strong reason in cases of libel
for dealing most cautiously and warily with
the granting of interim injunctions.”
 Permanent injunction
• is granted at the end of the hearing- see e.g.
Peter Waithaka Chege v George Mbuguss &
another the court granted an injunction
against the defendants.