Ask a lawyer:
if what I am saying is true, does it count as defamation?

mwakili.com

Introduction

I understand you are seeking clarification on whether your statement constitutes defamation under Kenyan law. To determine this, we need to examine the elements of defamation as defined in the Kenyan legal framework.

Defamation in Kenya
1. Elements of Defamation
2. Defences to Defamation
Conclusion

1. Defamation in Kenya

1.1 Elements of Defamation

Defamation is a civil wrong that occurs when a false statement is published that harms the reputation of another person. In Kenya, the law on defamation is primarily governed by the Defamation Act, Cap 36 Laws of Kenya.

To establish defamation, the following elements must be proven:

Statement must be defamatory: The statement must be one that is likely to lower the plaintiff's reputation in the estimation of right-thinking members of society. This means the statement must be capable of causing harm to the plaintiff's reputation. (Section 2 of the Defamation Act)
Statement must be false: The statement must be untrue. If the statement is true, it is not defamatory. (Section 2 of the Defamation Act)
Statement must be published: The statement must be communicated to a third party. This means that someone other than the plaintiff and the defendant must have heard or seen the statement. (Section 2 of the Defamation Act)
Statement must refer to the plaintiff: The statement must be capable of being understood as referring to the plaintiff. This does not necessarily mean that the plaintiff must be named explicitly. (Section 2 of the Defamation Act)

1.2 Defences to Defamation

Even if all the elements of defamation are proven, the defendant may still be able to avoid liability if they can establish one of the following defences:

Truth: The defendant can argue that the statement was true. This is a complete defence to defamation. (Section 4 of the Defamation Act)
Fair comment: The defendant can argue that the statement was a fair comment on a matter of public interest. This defence is available if the comment is based on true facts and is expressed honestly and without malice. (Section 5 of the Defamation Act)
Privilege: The defendant can argue that they had a legal or moral duty to make the statement. This defence is available in situations such as parliamentary proceedings, judicial proceedings, and statements made in good faith to protect the public interest. (Section 6 of the Defamation Act)
Consent: The defendant can argue that the plaintiff consented to the publication of the statement. (Section 7 of the Defamation Act)
Apology: The defendant can argue that they have apologized for the statement and have taken steps to mitigate the harm caused. (Section 8 of the Defamation Act)

2. Conclusion

To determine whether your statement constitutes defamation, we need to consider the specific content of your statement and whether it meets the elements of defamation outlined above. It is crucial to remember that the burden of proof lies with the plaintiff to establish that the statement is defamatory.

If you are concerned about the potential for a defamation claim, it is advisable to seek legal advice from a qualified lawyer in Kenya. They can assess the specific facts of your situation and provide you with tailored guidance.