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if what I am saying is true, does it count as defamation?

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The truth is an absolute defense against a claim of defamation in Kenya. This means that if you can prove that what you are saying is true, then you cannot be held liable for defamation.

Defamation in Kenya
1. Elements of Defamation
2. Defenses to Defamation
Case Laws
Conclusion
TLDR

1. Defamation in Kenya

Defamation is a civil wrong that occurs when a person makes a false statement about another person that harms their reputation. In Kenya, defamation is governed by the Defamation Act, Cap. 36 of the Laws of Kenya.

1.1 Elements of Defamation

To establish a claim for defamation, the plaintiff must prove the following elements:

The statement must be defamatory. This means that the statement must be false and must tend to lower the plaintiff's reputation in the eyes of right-thinking members of society.
The statement must refer to the plaintiff. This means that the statement must be understood to be about the plaintiff, even if they are not named explicitly.
The statement must be published. This means that the statement must be communicated to a third party.

1.2 Defenses to Defamation

There are a number of defenses to a claim of defamation, including:

Truth. The truth is an absolute defense to defamation. If the statement is true, then it cannot be defamatory.
Fair comment. This defense applies to statements of opinion, rather than statements of fact. To succeed on this defense, the defendant must prove that the statement was an honest expression of opinion, that the opinion was based on true facts, and that the opinion was fair.
Privilege. There are a number of situations where a person is protected from liability for defamation, even if the statement is false. These situations include:
- Absolute privilege. This applies to statements made in certain legal proceedings, such as parliamentary debates and court proceedings.
- Qualified privilege. This applies to statements made in good faith on a matter of public interest, such as reports in the media.
Consent. If the plaintiff consents to the publication of the statement, then they cannot sue for defamation.

2. Case Laws

Here are some relevant case laws on defamation in Kenya:

John Githongo v. The Standard Group Ltd. & Another [2010] eKLR. In this case, the plaintiff, a former Kenyan government official, sued the defendants, a newspaper and its publisher, for defamation. The plaintiff alleged that the defendants had published a series of articles that falsely accused him of corruption. The High Court found in favor of the plaintiff and awarded him damages. The court held that the defendants had failed to prove the truth of their allegations and that the articles had been published with malice.
The Standard Group Ltd. v. Dr. Evans Kidero [2016] eKLR. In this case, the plaintiff, a newspaper, sued the defendant, a former governor of Nairobi, for defamation. The plaintiff alleged that the defendant had made a defamatory statement about the plaintiff in a television interview. The High Court found in favor of the defendant and dismissed the plaintiff's claim. The court held that the defendant's statement was not defamatory because it was a statement of opinion, rather than a statement of fact.
The Star Newspaper Ltd. v. The Attorney General [2017] eKLR. In this case, the plaintiff, a newspaper, sued the defendant, the Attorney General, for defamation. The plaintiff alleged that the defendant had made a defamatory statement about the plaintiff in a press release. The High Court found in favor of the defendant and dismissed the plaintiff's claim. The court held that the defendant's statement was not defamatory because it was a statement of opinion, rather than a statement of fact.

3. Conclusion

In conclusion, if you can prove that what you are saying is true, then you cannot be held liable for defamation in Kenya. However, it is important to note that the truth is an absolute defense, and it must be proven beyond a reasonable doubt. If you are unsure whether or not your statement is true, it is best to err on the side of caution and avoid making the statement.

4. TLDR

If you can prove that what you are saying is true, then you cannot be held liable for defamation in Kenya.

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