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what counts as defamation?

Introduction

Defamation is a legal term that refers to any statement made by a person, whether verbal or written, that causes harm to another person's reputation or character. In Kenya, defamation law is primarily governed by the Defamation Act, Chapter 36 of the Laws of Kenya. This law provides the framework for understanding what constitutes defamation, the defenses available, and the remedies that can be sought by an aggrieved party.

Table of Contents

  1. Definition of Defamation

  2. Types of Defamation

    1. Libel

    2. Slander

  3. Elements of Defamation

  4. Defenses to Defamation

  5. Remedies for Defamation

  6. Relevant Case Laws

  7. Conclusion

  8. TLDR

1. Definition of Defamation

Defamation in Kenya is broadly defined as a false statement that tarnishes, harms, or damages a person's reputation. It falls under tort law and includes both libel (written statements) and slander (oral or spoken statements). The Defamation Act, Chapter 36, Laws of Kenya, consolidates and amends the statute law relating to libel, slander, and other malicious falsehoods.

Sources:

  • Defamation Act, Chapter 36, Laws of Kenya ↗

  • Understanding Defamation Laws in Kenya - trust.org ↗

2. Types of Defamation

2.1 Libel

Libel refers to defamatory statements that are made in a permanent form, such as written words, images, or any other form of media. The key characteristic of libel is its permanence, which means that the defamatory statement can be repeatedly accessed and read.

2.2 Slander

Slander refers to defamatory statements that are made in a transient form, such as spoken words or gestures. Unlike libel, slander is not permanent and is usually considered less harmful because it is not easily accessible after it has been spoken.

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3. Elements of Defamation

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

  1. False Statement: The statement in question must be false. Truth is a complete defense to defamation.

  2. Publication: The statement must be published or communicated to a third party. This means that at least one person other than the plaintiff and the defendant must have seen or heard the statement.

  3. Fault: The defendant must be at fault, either through negligence or malice, in making the statement.

  4. Harm: The statement must cause harm to the plaintiff's reputation. This can include damage to personal or professional reputation, emotional distress, or financial loss.

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4. Defenses to Defamation

Several defenses can be raised against a defamation claim in Kenya:

  1. Truth: If the statement is true, it is a complete defense to defamation.

  2. Privilege: Certain statements made in specific contexts are protected by privilege. This can be absolute privilege (e.g., statements made in Parliament) or qualified privilege (e.g., statements made in the course of duty).

  3. Fair Comment: This defense applies to statements of opinion rather than fact. The opinion must be based on true facts and must be a matter of public interest.

  4. Consent: If the plaintiff consented to the publication of the statement, this can be a defense.

  5. Apology and Retraction: In some cases, issuing an apology and retracting the statement can mitigate damages or serve as a defense.

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5. Remedies for Defamation

The remedies available for defamation in Kenya include:

  1. Damages: The primary remedy for defamation is monetary compensation for the harm caused. This can include general damages for loss of reputation, special damages for specific financial losses, and punitive damages to punish the defendant.

  2. Injunction: A court may issue an injunction to prevent further publication of the defamatory statement.

  3. Apology and Retraction: The court may order the defendant to issue a public apology and retract the defamatory statement.

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6. Relevant Case Laws

6.1 Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR

In this landmark case, the High Court of Kenya declared the criminal element of defamation unconstitutional. The court held that criminalizing defamation was a disproportionate restriction on the freedom of expression guaranteed by the Constitution of Kenya.

Relevance: This case is significant because it shifted defamation law in Kenya from a criminal to a civil matter, emphasizing the importance of freedom of expression.

6.2 Phineas Nyagah v Gitobu Imanyara [2013] eKLR

In this case, the plaintiff, Phineas Nyagah, sued Gitobu Imanyara for defamation. The court awarded the plaintiff Kshs. 5,000,000 in general damages and Kshs. 500,000 in aggravated damages.

Relevance: This case illustrates the application of defamation law in Kenya and the types of damages that can be awarded.

6.3 John Ward v Standard Ltd [2006] eKLR

John Ward sued Standard Ltd for publishing defamatory statements about him. The court awarded him Kshs. 7,000,000 in general damages and Kshs. 1,000,000 in exemplary damages.

Relevance: This case highlights the significant financial consequences of defamation and the court's willingness to award substantial damages to aggrieved parties.

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Conclusion

Defamation law in Kenya is designed to protect individuals from harm to their reputation caused by false and derogatory remarks. The law distinguishes between libel and slander, with specific elements that must be proven to establish a case of defamation. Various defenses are available to those accused of defamation, and the remedies include damages, injunctions, and apologies. Landmark cases such as Jacqueline Okuta & another v Attorney General & 2 others have shaped the current legal landscape, emphasizing the importance of balancing the right to reputation with the freedom of expression.

TLDR

Defamation in Kenya involves making false statements that harm another person's reputation. It includes libel (written) and slander (spoken). To prove defamation, one must show a false statement, publication, fault, and harm. Defenses include truth, privilege, fair comment, and consent. Remedies include damages, injunctions, and apologies. Key cases like Jacqueline Okuta & another v Attorney General & 2 others have shaped the legal framework.

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Answered by mwakili.com