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DEFAMATION ACT

WHAT IS DEFAMATION?

The Act does not define defamation, but its definition can be derived from various legal texts and case law:

  • Defamation is defined as the publication of a statement which, tends to lower a person in the estimation of his fellow men or right thinking members of the society generally and which tend to make him be shunned or avoided, or makes them think less of him.

  • The defamatory statement is one which has tendency to injure the reputation of the person to whom it refers by lowering him in the estimation of the right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem and typical examples are an attack upon the moral character of the person attributing to him any form of disgraceful conduct such as crime, dishonesty, cruelty and so on.

  • Publication is the communication of the words to at least one other person other than the person defamed. Publication to the person defamed alone is not enough because defamation is an injury to one’s reputation and reputation is what other people think of a man and not his own opinion of himself.

  • An action for defamation is essentially an action to compensate a person for the harm done to his reputation. Defamation is not just about publication of falsehoods against a person; it is necessary to show that the published falsehood disparaged the reputation of the person or tended to lower him in the estimation of right thinking members of society generally.

  • An injurious falsehood may not necessarily be an attack on the person’s reputation. The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts.

 

(See: J. P. Machira Vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997)

PURPOSE OF THE ACT

To consolidate and amend the Statute law relating to libel, other than criminal libel, slander and other malicious falsehoods.

  • LIBEL - libel is defamatory statements and/or pictures published in permanent form such as print or writing; or broadcast in the media, such as over the radio, on TV or in film.
  • SLANDER - slander is an oral defamatory statement or a statement in transient / spoken form.
  • libel is defamation crystallized into some permanent form, while slander is conveyed by some transient method of expression.
  • libel is an actionable under civil injury (tort) and also as a criminal offence, whereas slander is a civil injury only;
  • libel is actionable per se (meaning proof of damages need not be presented) and the actual sum to be awarded is “at large” and although a person’s reputation has no actual cash value, the Court is free to form its own estimate of the harm taking into account all the circumstances. Slander is, save in special cases actionable only on proof of actual damage, and
  • Slander affecting official, professional or business reputation (section 3): 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.
  • Slander of women (section 4): In any action for slander in respect of words imputing unchastely to any woman or girl (for instance implying that is not virtuous, not a virgin or that she engages in extramarital affairs), it shall not be necessary to allege or prove special damage. In any such action a plaintiff shall not recover more costs than damages unless the court shall certify that there was reasonable ground for bringing the action.
  • Slander of title, etc. (section 5): In any action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage —
    • if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or
    • if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.

In a claim for defamation, the person claiming (plaintiff) must prove as against the person who defamed him (the defendant) that:

 

  • that the matter of which the plaintiff complains was published by the defendant, and
  • that it was published of and concerning the plaintiff, and
  • that it is defamatory in character; and,
  • that it was published maliciously; and
  • in slander, subject to certain exceptions, that the plaintiff has thereby suffered special damage.

Section 8 provides that for the purposes of the law of libel and slander, the publication of words by wireless broadcasting such as radio and television, shall be treated as publication in a permanent form - Libel.

  1. THE DEFENCE OF PRIVILEGE

Lord Atkinson in the case of Adam –vs- Ward (1917) AC 309 at page 334, states that “A privileged occasion is an occasion when the person who makes the communication has an interest, or a duty legal, social or moral, to make it (the communication) to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it.”

  1. NEWSPAPER REPORTS OF JUDICIAL PROCEEDINGS (SECTION 6)

    A fair and accurate report in any newspaper of proceedings heard before any court exercising judicial authority within Kenya shall be absolutely privileged, provided it is not blasphemous, seditious or indecent.

  2. QUALIFIED PRIVILEGE OF NEWSPAPERS (SECTION 7)

    The publication in a newspaper of any such report or other matter as is listed here below is privileged without explanation or contradiction:

    • A fair and accurate report of any proceedings in public of—
      • the legislature of any part of the Commonwealth other than Kenya;
      • an international organization of which Kenya or the Government of Kenya is a member, or of any international conference to which the Government sends a representative;
      • a person or body appointed to hold a public inquiry by the government or legislature of any part of the Commonwealth other than Kenya.
    • A fair and accurate report of any proceedings before a court exercising jurisdiction throughout any part of the Commonwealth subject to a separate legislature, or of any proceedings before a court-martial held outside Kenya under any written law.
    • A fair and accurate copy of or extract from any register kept in pursuance of any written law which is open to inspection by the public, or of any other document which is required by such law to be open to inspection by the public.
    • A notice, advertisement or report issued or published by or on the authority of any court within Kenya or any judge or officer of such court or by any public officer or receiver or trustee acting in accordance with the requirements of any written law.
  • The House of Lords in Reynolds -v- Times Newspapers Ltd. (2001) 2 AC 127 created qualified privilege for publications to the general public on matters of public concern. This privilege is founded on duty and interest; its very existence requires that the defendant has adhered to standards of responsible journalism and this involves matters like the nature of steps taken to verify the information and whether comment was sought from the claimant. For more see Mwangi Kiunjuri v Wangethi Mwangi & 2 others [2016] eKLR.

  • For more see, the case of University of Nairobi -v- Mbuthia (1980) eKLR, Civil Appeal No. 20 of 1979 where the Court of Appeal in Kenya (Madan, Law, Miller, JJA) recognized qualified privilege as part of defamation law in Kenya. University of Nairobi v Mbuthia[1980] eKLR

A Newspaper publication shall not be classified as privileged if it proved that:

  • The publication is done with malice
  • The plaintiff has requested for an explanation or contradiction to be made in the newspaper but the newspaper has unreasonably refused or neglected to do so
  • The publication is prohibited by law
  • The subject of publication is not a matter of public concern
  • The publication is not for the benefit of the public
  • In any action for libel in respect of the publication of a Parliamentary Report and publication of a copy of a Parliamentary Report it shall be a defence for the defendant to produce to the court a certificate under the hand of the Speaker of the National Assembly that such report was published by the order or under the authority of the Assembly concerned, together with an affidavit verifying such certificate.
  • In any action for libel in respect of the publication of any extract from, or abstract of, any parliamentary report it shall be a defence for the defendant to show that the matter in question was in fact an extract from, or abstract of, a Parliamentary Report and that the publication thereof was bona fide and without malice.
  • Section 19 (2) provides that, this Act shall NOT affect the privileges of the National Assembly or the East African Legislative Assembly, or the law relating to criminal libel.
  • In any action for libel contained in a newspaper or other periodical publication it shall be a defence for the defendant to show that such libel was inserted in such newspaper or periodical without malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity thereafter, he inserted in the same newspaper or periodical publication a full apology for the said libel, or, if the newspaper or periodical publication in which the said libel appeared should ordinarily be published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff.

  • This defence shall not be available unless, at the time of filing his defence, the defendant has made a payment into court by way of amends.


  •  

In the High Court case of Phineas Nyagah v. Gitobu Imanyara (2013) eKLR Odunga J held that:-"Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice...Malice may also be inferred from relations between parties...The failure to inquire in the facts is a fact from which inference of malice may properly be drawn." Phineas Nyagah v. Gitobu Imanyara (2013) eKLR

  • A publication may be treated as having been unintentional/ innocent only where:
    • The person making the publication did not intend to publish them of and concerning the plaintiff and did not know of circumstances by virtue of which they might be understood to refer to the plaintiff.
    • The words were not defamatory on the face of them, and the defendant did not know of circumstances by virtue of which they might be understood to be defamatory of the plaintiff.

  • A person (in this section referred to as the defendant) who has published words alleged to be defamatory of another person (in this section referred to as the plaintiff) may, if he claims that the words were published by him innocently in relation to the plaintiff, make an offer of amends under this section, and in any such case —
    • if the offer is accepted by the plaintiff and is duly performed, no proceedings for libel or slander shall be taken or continued by the plaintiff against the defendant in respect of the publication in question (but this will not affect any cause of action against any other person jointly responsible for that publication);
    • if the offer is not accepted by the plaintiff, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him against the defendant in respect of such publication, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.
  • An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit made by the defendant specifying the facts relied upon by him to show that the words in question were published by him innocently in relation to the plaintiff, and for the purposes of this defence, no evidence other than evidence of facts specified in such affidavit shall be admissible on behalf of the defendant to prove that the words were so published.
  • An offer of amends shall be an offer to publish a suitable correction and a sufficient apology, and where possible to take steps to notify such persons to whom the defamatory publication had been distributed to.
  • Where the parties cannot agree on the steps to be taken in fulfillment of an accepted offer of amends, the High Court may make a final decision.
  • This defence shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.
  • In any action for defamation, it is a defence for the defendant to prove that the publication (the message and the implication) he made was true.
  • 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.
  • The authors of Winfield and Jowiez on Tort, 15th Edition, l998 (London) Sweet & Maxwell at page 416 2nd paragraph stated “It is on general principle that the justification must be as broad as the charge and the defendant must prove that the content of the statement must be true not merely that it was made”
  • The case of Machira t/a Machira & Co. Advocates –vs- East African Standard (2001) KLR 638, it was observed at page 644: - “…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 ------ For him to rely on justification, he must accept the Plaintiff’s version of the statement or a statement which is in sum identical with the Plaintiff’s version.”

See Hon. Uhuru Muigai Kenyatta V Baraza Limited [2011]eKLR

  • 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.
  • In the case of Cohen –vs- Daily Telegraph Ltd. (1968) 2 ALL ER 407 it was held that: - “The facts on which a plea of fair comment was based must be facts existing at the time when the comment was made and accordingly the two paragraphs relating to events that occurred after the publication of the alleged libel had been rightly struck out.”
  1. RIGHT OF REPLY (SECTION 7A)

    WHAT IS THE CONSEQUENCE OF FAILING TO EXERCISE THE RIGHT OF REPLY?

    • Any person or body of persons shall be entitled to a right of reply to any factual inaccuracy affecting them which has been published in a newspaper and which is damaging to the character, reputation or good standing of that person or body of persons.
    • Where a person or body of persons is entitled to such right of reply, a correction shall be printed in the next possible edition of the newspaper.
      • If the plaintiff does not take exercise his right of reply, this does not absolve the defendants from blame.
      • There is a corresponding duty on the defendant to correct the wrong impression created by their publication.
      • The plaintiff’s refusal to exercise the right of reply may be used by the defendant as mitigation to reduce an award of damages if granted by the Court.
      • In the case of Martin Tindi Khaemba V Standard Newspapers [2008] eKLR it was stated; “As regards failure to reply on the part of the plaintiff as required by Section 7A of the Act, the Court, is in agreement with the Plaintiffs’ Counsel, that failure to so comply by the plaintiff does not give the defence a walk over in so far as the plaintiffs claim is concerned. There is a salient corresponding duty on the part of the defence to publish the correct information once the same is brought to their notice. Further failure to so comply does not oust the Plaintiffs claim but acts as a mitigation in damages.” Martin Tindi Khaemba V Standard Newspapers [2008] eKLR
  2. AWARD OF DAMAGES (SECTION 16 A)

    • In any action for libel, the court shall assess the amount of damages payable that it feels is fair. 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 of not less than three years the amount assessed shall not be less than four hundred thousand shillings.
    • In Francis Xavier Ole Kaparo v Standard Limited & 3 others [2010] eKLR the court held that where the plaintiff’s reputation and dignity are injured, he is entitled to general, exemplary and aggravated damages to vindicate him to the public and to console him for the wrong done. Francis Xavier Ole Kaparo v Standard Limited & 3 others [2010] eKLR
    • In Johns –vs- MGN Limited [1996] All ER 34, the court held; “The extent of publication is also very relevant; a libel published to millions as a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libelous publication took place. Johns –vs- MGN Limited [1996] All ER 34
    • In any civil proceedings for libel, the court, unless it is of the opinion that any reply under this section is either irrelevant or unreasonable in all the circumstances of the case, may award an additional amount of damages together with the damages for defamation where the publisher has failed or refused to publish a correction or failed to give it the prominence required by this section (Section 7A (6)

MITIGATION OF DAMAGES (SECTION 16)

  • In any action for libel or slander the defendant may, after giving notice of his intention to the plaintiff at the time of filing or delivering the plea in such action, give evidence in mitigation of damages that he made or offered an apology to the plaintiff, in respect of the words complained of, before the commencement of the action or, where the action was commenced before there was an opportunity of making or offering such apology, as soon thereafter as he had such opportunity.
  • In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.

CONSOLIDATION OF ACTIONS (SECTION 17)

  • The court or a judge may, upon the application by or on behalf of two or more defendants in actions in respect of the same, or substantially the same, defamatory statement brought by the same plaintiff, make an order for the consolidation of such actions.

AGREEMENTS FOR INDEMNITY (SECTION 18)

  • An agreement for indemnifying any person against civil liability for libel in respect of the publication of any matter shall not be unlawful unless at the time of such publication such person knows that the matter is defamatory and does not reasonably believe there is a good defence to any action brought upon it.

WHEN DOES THIS ACT BEGIN TO OPERATE (SECTION 19)

  • This Act applies to cases begun after the commencement of this Act, whenever the cause of action arose, but does not affect any proceedings begun before such commencement.
  • A fair and accurate report of the findings or decisions of any of the following associations, or of any committee or governing body thereof—
    • an association formed in Kenya for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudication upon matters of interest or concern to such association or the actions or conduct of any person’s subject to such control or adjudication;
    • an association formed in Kenya for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession, or the actions or conduct of those persons;
    • an association formed in Kenya for promoting or safeguarding the interests of any game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime, being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association.
  • A fair and accurate report of the proceedings of any public meeting in Kenya bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted.
  • A fair and accurate report of the proceedings at any meeting or sitting in Kenya of—
    • any local authority or committee of a local authority or local authorities;
    • any commission, tribunal, committee or person appointed for the purpose of any inquiry by or under the provisions of any written law;
    • any person appointed by a local authority to hold a local inquiry in pursuance of any written law;
    • any other tribunal, board, committee or body constituted by or under, and exercising functions under, any written law, not being a meeting or sitting admission to which is denied to representatives of newspapers and other members of the public.
  • A fair and accurate report of the proceedings at a general meeting of a company or association constituted, registered or certified by or under any written law, not being a private company within the meaning of the Companies Act (Cap. 486).
  • A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any department of the government, Minister, local authority or gazetted police officer.
  • A case for defamation can only be brought within twelve months of the publication of the defamatory words/ statement.
  • The Act amends section 4 (2) of the Limitation of Actions Act (Cap. 22) which previously provided that “An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued,” by adding the exception - “Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”

  • The law does not provide for extension of time in defamation cases. Section 27 of the Limitation of Actions Act provided for extension of time – which allows for cases to be brought after the time limit where there are special circumstances. However, the effect of the amendment is such that extension of time would not apply to defamation claims.

  • The High Court in the case of Dr. Lucas Ndungu Munyua vs Royal Media Services Limited & another [2014] eKLR, (Odunga J) stated that: “From the foregoing extension of time only applies to claims made in tort and even in tort the claims must be in respect of claims for personal injuries arising from negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law).” Dr. Lucas Ndungu Munyua vs Royal Media Services Limited & another [2014] eKLR

  • In Republic vs. Principal Magistrate P. Ngare Gesora Principal Magistrate’s Court & 2 others Ex-parte Nation Media Group Ltd [2013] eKLR, it was held that a claim for damages for defamation cannot lend itself to the remedy of extension of time under section 27 of the Limitation of Actions Act. Republic vs. Principal Magistrate P. Ngare Gesora Principal Magistrate’s Court & 2 others Ex-parte Nation Media Group Ltd [2013] eKLR

  • In Nzoia Sugar Company Limited Vs. Collins Fungututi Civil Appeal No. 7 of 1988 [1988] KLR 399 the court held that “A Judge cannot lawfully award damages for defamation in an action barred 12 months after the cause of action arose…” Nzoia Sugar Company Limited Vs. Collins Fungututi Civil Appeal No. 7 of 1988 [1988] KLR 399

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