DEFAMATION IN KENYA

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Now onto today’s topic;

Defamation laws are designed to protect individuals and businesses against false statements that harm their reputation. This body of law falls under tort law and encompasses both civil and criminal aspects.

The primary statute governing civil defamation is the Defamation Act (Cap. 36), an Act of Parliament intended to consolidate and amend the statute law relating to libel (other than criminal libel), slander, and other malicious falsehoods. While defamation laws are necessary for protection, they also have the potential to be misused to inhibit open public debate. The Constitution of Kenya, 2010, affirms the right to freedom of expression, but stipulates that its exercise must respect the rights and reputation of others (Article 33(3)).

Legal Definition of Defamation Under Kenyan Law 

Defamation is broadly defined as a false statement that tarnishes, harms, or damages a person’s reputation. More specifically, defamation involves making a false statement that tends to:

• Harm a person’s reputation.
• Lower them in the eyes of members of society.
• Expose them to public hatred, contempt, or ridicule.
• Cause them to be shunned or avoided.

Defamation is categorized into two forms:

• Libel: Written statements. Publication of words by wireless broadcasting is treated as publication in a permanent form for the purposes of the law of libel and slander.
• Slander: Oral or spoken statements. The term words in the context of the Defamation Act includes pictures, visual images, gestures, and other methods of signifying meaning.

Essential Ingredients for the Tort of Civil Defamation 

For a plaintiff to successfully establish a claim for the tort of civil defamation, the legally established ingredients are that:

• The statement in issue must be defamatory in character (i.e., a false statement likely to harm a person’s reputation).
•  The statement must refer to the plaintiff (or they could be identified from the statements in question).
• The statement must be published by the defendant (i.e., communicated or published to someone other than the person complaining/suing).
• The statement must be false.

Common Examples of Defamation 

1. False accusations: Spreading untrue information on social media platforms like X (formerly Twitter) or Facebook accusing someone of a crime, immorality, or professional misconduct. For instance, a politician was sued for KSh 60 million over a defamatory social media post.
2. Re-posting defamatory content: Sharing or re-tweeting someone else's defamatory post is considered re-publication and can make you liable for defamation.
3. Innuendo: Publishing a statement with an implied meaning that identifies and defames a particular person, even without directly naming them. For example, a blogger might post an innuendo, and other users connect the dots, making the identity of the person being discussed obvious.  
4. False claims of incompetence: Spreading lies that a professional, such as a doctor or lawyer, is incompetent at their job.
5. Media reports: Publishing false and malicious allegations about a person in a newspaper, magazine, or other publication. The media has a defense of qualified privilege for reports on matters of public concern, but this does not protect against malicious publication.  

In Bridge International Academies Limited v Kenya National Union of Teachers (KNUT) & Another (2017), Bridge International Academies sought an injunction to stop KNUT and its Secretary-General from publishing allegedly false and defamatory statements claiming the schools were unregistered and non-compliant with education regulations. The court held that injunctions in defamation cases must be granted with great caution and only where the words are clearly and unquestionably defamatory. Emphasizing the constitutional protection of freedom of expression and the public’s right to information, the court found that the publications concerned matters of public interest, education and regulatory compliance, and were already in the public domain. Consequently, the court dismissed the application, ruling that no sufficient case for an injunction had been established. 

In conclusion, defamation law in Kenya seeks to protect both reputation and freedom of expression. As seen in Bridge International Academies v KNUT and Sanitam Services v Nyaga, courts act cautiously to avoid limiting public discussion unless statements are clearly false and harmful. In an age of instant communication, understanding defamation helps us speak responsibly while respecting others’ rights.

 

Catch you in the next blog!

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Republic of Kenya, High Court of Kenya at Nairobi, Bridge International Academies Limited v Kenya National Union of Teachers & Wilson Sossion (High Court Civil Suit No 59 of 2017, R. Mwongo PJ, 20 Feb 2018).