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

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Introduction

Defamation is a legal term that refers to the act of making false statements about another person that can harm their reputation. In Kenya, defamation can be categorized into two types: libel (written defamation) and slander (spoken defamation). The key element in a defamation case is the falsity of the statement. Therefore, if what you are saying is true, it generally does not count as defamation. This principle is rooted in both statutory law and case law in Kenya.

Definition of Defamation
Elements of Defamation
Truth as a Defense
Relevant Case Laws
Conclusion
TLDR

1. Definition of Defamation

Defamation in Kenya is governed by the Defamation Act, Cap 36 of the Laws of Kenya. According to the Act, defamation is the publication of a false statement that injures a third party's reputation. The Act distinguishes between libel and slander:

Libel: Defamation in a permanent form, such as written statements, pictures, or any other form of media.
Slander: Defamation in a transient form, such as spoken words or gestures.

(Source: Defamation Act - Kenya Law Reports ↗)

2. Elements of Defamation

To establish a case of defamation, the plaintiff must prove the following elements:

Publication: The statement must be communicated to someone other than the person it is about.
Falsity: The statement must be false.
Defamatory Meaning: The statement must be defamatory, meaning it must lower the person in the estimation of right-thinking members of society.
Reference to the Plaintiff: The statement must refer to the plaintiff.
Damage: The statement must cause damage to the plaintiff's reputation.

(Source: Summary of Defamation Law in Kenya and How to Sue ↗)

3. Truth as a Defense

In defamation cases, truth is an absolute defense. If the statement made is true, it cannot be considered defamatory, regardless of the harm it may cause to the person's reputation. This principle is enshrined in Section 14 of the Defamation Act, which states that it is a defense to an action for defamation to prove that the statement complained of is true in substance and in fact.

Substantial Truth Doctrine

The substantial truth doctrine further supports this defense. Under this doctrine, minor inaccuracies do not make a statement defamatory as long as the "gist" or "sting" of the statement is true. This means that trivial inaccuracies will not change the outcome if the core of the statement is true.

(Source: Is It Defamation If It is True? | Truth Defense - Minc Law ↗)

4. Relevant Case Laws

Jacqueline Okuta & Another vs. Attorney General & 2 Others [2017] eKLR

In this landmark case, the High Court of Kenya declared Section 194 of the Penal Code, which criminalized defamation, unconstitutional. The court held that criminal defamation was disproportionate and excessive, and not justifiable in a democratic society. This case underscores the importance of truth as a defense in defamation cases.

Parties: Jacqueline Okuta & Another vs. Attorney General & 2 Others
Outcome: Section 194 of the Penal Code was annulled.
Relevance: The case highlights the importance of protecting freedom of expression and the role of truth in defamation cases.

(Source: Kenya: High Court Declares Penal Code Provision on Criminal Defamation Unconstitutional ↗)

Phineas Nyagah vs. Gitobu Imanyara [2013] eKLR

In this case, the plaintiff sued the defendant for defamation, claiming that the defendant had made false and defamatory statements about him. The court held that the statements were indeed defamatory and awarded damages to the plaintiff. However, the court also emphasized that if the defendant had proven the truth of the statements, the outcome would have been different.

Parties: Phineas Nyagah vs. Gitobu Imanyara
Outcome: The plaintiff was awarded damages.
Relevance: The case illustrates the critical role of truth in defamation cases.

(Source: Phineas Nyagah vs. Gitobu Imanyara [2013] eKLR ↗)

5. Conclusion

In summary, if what you are saying is true, it does not count as defamation under Kenyan law. The truth is an absolute defense to defamation, and this principle is well-established in both statutory law and case law. Therefore, as long as the statement you make is true, you cannot be held liable for defamation, regardless of the harm it may cause to the person's reputation.

6. TLDR

If what you are saying is true, it does not count as defamation under Kenyan law. Truth is an absolute defense to defamation.

Sources