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what counts as defamation?

Table of Contents

1. Introduction

2. Defamation in Kenya

   1. Definition of Defamation

   2. Elements of Defamation

   3. Defences to Defamation

   4. Remedies for Defamation

3. Conclusion

Introduction

This response will address the question of what constitutes defamation in Kenya. It will delve into the legal definition of defamation, the elements that must be proven to establish a claim, available defences, and the remedies available to a successful claimant. The information provided is based on the Kenyan Constitution and relevant legislation.

Defamation in Kenya

1. Definition of Defamation

Defamation is a civil wrong that occurs when a person's reputation is harmed by a false and defamatory statement made by another person. The law of defamation aims to protect individuals from unwarranted attacks on their character and reputation.

Sources:

• Article 33 of the Constitution of Kenya, 2010: This article guarantees the right to freedom of expression, which includes the right to hold opinions and to receive and impart information and ideas without interference. However, this right is not absolute and can be limited by law in certain circumstances, such as to protect the reputation of others.

• The Defamation Act, Cap 36 Laws of Kenya: This Act provides the legal framework for defamation claims in Kenya.

2. Elements of Defamation

To establish a claim for defamation, the following elements must be proven:

• Publication: The defamatory statement must be published to a third party. This means that the statement must be communicated to someone other than the person defamed.

• Identification: The statement must be identifiable as referring to the claimant. It does not have to name the claimant explicitly, but it must be clear to a reasonable person that the statement refers to them.

• Defamatory Meaning: The statement must be defamatory in nature. This means that it must lower the claimant's reputation in the eyes of right-thinking members of society.

• Falsehood: The statement must be false. If the statement is true, it is not defamatory.

• Fault: The defendant must have been at fault in publishing the statement. This means that they must have either intended to defame the claimant or been negligent in publishing the statement.

Sources:

• Section 2 of the Defamation Act, Cap 36 Laws of Kenya: This section defines defamation as the publication of a false and defamatory statement concerning another person without lawful justification.

• Case Law: Kenyan courts have developed a body of case law that clarifies the elements of defamation. For example, in the case of Johnstone v. Mwadime [2003] eKLR, the court held that a statement is defamatory if it tends to lower the claimant's reputation in the eyes of right-thinking members of society.

3. Defences to Defamation

There are several defences available to a defendant in a defamation claim. These include:

• Truth: If the statement is true, it is not defamatory.

• Fair Comment: This defence applies to statements of opinion, provided that the opinion is based on true facts and is fair.

• Public Interest: This defence applies to statements made in the public interest, even if they are defamatory.

• Privilege: This defence applies to statements made in certain circumstances, such as in Parliament or in court proceedings.

• Consent: If the claimant consented to the publication of the statement, they cannot sue for defamation.

Sources:

• Section 4 of the Defamation Act, Cap 36 Laws of Kenya: This section outlines the defences to defamation, including truth, fair comment, public interest, privilege, and consent.

• Case Law: Kenyan courts have developed a body of case law that clarifies the application of these defences. For example, in the case of Muthoka v. Standard Newspapers Ltd [2005] eKLR, the court held that the defence of fair comment requires that the opinion be based on true facts and be fair.

4. Remedies for Defamation

If a claimant is successful in a defamation claim, they may be awarded the following remedies:

• Damages: This is the most common remedy for defamation. Damages are awarded to compensate the claimant for the harm caused to their reputation.

• Injunction: This is a court order that prohibits the defendant from further publishing the defamatory statement.

• Apology: The court may order the defendant to publish an apology to the claimant.

Sources:

• Section 5 of the Defamation Act, Cap 36 Laws of Kenya: This section provides for the remedies available to a successful claimant in a defamation claim.

• Case Law: Kenyan courts have developed a body of case law that clarifies the principles of awarding damages for defamation. For example, in the case of Otieno v. Kenya Broadcasting Corporation [2007] eKLR, the court considered factors such as the gravity of the defamation, the extent of publication, and the claimant's reputation in awarding damages.

Conclusion

Defamation is a serious civil wrong that can have a significant impact on an individual's reputation and livelihood. The law of defamation in Kenya aims to protect individuals from false and defamatory statements. To establish a claim for defamation, the claimant must prove the elements of publication, identification, defamatory meaning, falsehood, and fault. However, defendants have several defences available to them, including truth, fair comment, public interest, privilege, and consent. If a claimant is successful, they may be awarded damages, an injunction, or an apology.