MASENO UNIVERSITY SCHOOL OF LAW

COURSE: LAW OF TORT II

CODE:

LECTURER: PROF. ORAGO N.

DATE: 5TH DECEMBER, 2023

PHONE NO. 0713456782

NAME ADMISSION NO.

GEORGE M. JUMAH LLB/04001/022

LEONARD OCHOLLA LLB/04006/022

MARGARET TIA LLB/04016/022

GORBERCHEF O APUNDA LLB/04008/022

 DEFAMATION

Definition of defamation

According to Jolowicz, Defamation is the publication of a statement which reflects

on a person’s reputation and tends to lower him in the estimation of right- thinking

members of society generally or tends to make them shun or avoid him. 1 The case

of Parmiter v Coupland2 added that the publication needs to ‘be calculated to

injure the reputation of another, by exposing them to hatred, contempt or ridicule.

Significant to state is the fact that the statement must be untrue. Winfield and

Jolowicz affirms that a statement that is true can never amount to defamation,

however painful or embarrassing it may be3.

Gatley on Libel and Slander, 13th edition defines defamation as;

The gist of the torts of libel and slander is the publication of matter (usually

words) conveying a defamatory imputation. A defamatory imputation is one to a

man's discredit, or which tends to lower him in the estimation of others, or to

expose him to hatred, contempt or ridicule, or to injure his reputation in his office,

trade or profession, or to injure his financial credit.

1
W V H Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell, 2002), p. 405

2
Parmiter v Coupland [1840] 6 M & W 105
3
W V H Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell, 2002), p. 405
Regarding the constitutional position of defamation, Aburili, J. in the case of

Gideon Mose Onchwati v. Kenya Oil Company Ltd & Another4, stated that

...the court in deciding defamation cases must balance the provisions of

Articles 33, 34 and 35 of the Constitution, dealing with the freedoms of expression

and media freedom and the individual's right to access information on one hand

and Article 28 in respect of the inherent dignity must be respected and protected...

Elements of Defamation

For a case of defamation to be established, the claimant must prove the following

elements in no specific order:

a) That the statement complained of is defamatory

Article 33 (3) of the Constitution states that; “In exercise of the right to freedom of

expression every person shall respect the rights and reputation of others”. In the

case of Polycarp Omolo Ochilo v Nation Media Group Limited [2019] eKLR, the

court affirmed that in a defamation suit the plaintiff must prove the following

elements in order to succeed;

a. The statement was defamatory

b. It must have been published by the defendant

c. The words must refer to the plaintiff

d. The statement was false

4
Gideon Mose Onchwati v Kenya Oil Co. Ltd & another [2015]
e. The publication was published with malice.

Similarly, the Musikari Kombo case of 2018 5 also affirmed that It follows that a

claimant in a defamation suit ought to principally establish in no particular order:

i. The existence of a defamatory statement;

ii. The defendant has published or caused the publication of the defamatory

statement;

iii. The publication refers to the claimant.

b) That the statement refers to the claimant.

The defamatory statement must link or refer to the claimant as was a subject of

dismissal in the case of Musikari Kombo v Royal Media Services Limited at the

High Court of Kenya were Odunga, J stated that “My understanding of the

foregoing is that a relative of a person cannot, as a general rule, successfully

sustain a claim in defamation unless the publication of the defamatory material

also necessarily imputes that the claimant is in some way connected to the

defamatory matter. Therefore, Gatley on Libel and Slander is clear that even

where the person defamed is said to keep a brothel, it is only the spouse who

lives or resides with him who can sustain an action in defamation. The High

Court decision was reversed by the Court of Appeal where it was held that,

“However, we unlike the learned Judge, find that the broadcasts were also

concerning the appellant to a certain extent. We say so because his name and
5
Musikari Kombo v Royal Media Services Limited [2018] eKLR
 his status were clearly mentioned in both broadcasts. The respondent’s witness,

Janet was categorical that the use of the appellant’s name was to

sensationalize the story and attract a wide audience. Therefore, unlike the

learned Judge, we are not persuaded that the appellant’s cause of action was

based purely on his relationship to his wife. In our opinion, the appellant was

entitled to file suit on his own right because the broadcasts referred to him and

more importantly the woman named therein was not his wife.6”

Affirmatively both the High Court and the Court of Appeal concurred as

follows “We agree with the learned Judge that the general rule as to who can

sue in a claim for defamation is that it is the person against who the defamatory

words have been published.” Similarly, that was also the position advanced by

Lord Atkin in the case of Knupffer vs. London Express Newspaper Ltd. Stating

that

“The only relevant rule is that in order to be actionable the defamatory words

must be understood to be published of and concerning the plaintiff.”

c) That the statement has been published.

6
Musikari Kombo v Royal Media Services Limited [2018] eKLR
The statement has been communicated to the third party. The case of Nation

Media Group & Another vs. Hon. Chirau Mwakwere 7 established that the

statement is defamatory only if the defendant has published it or has caused its

publication.

This was also in Musikari Kombo case and Polycarp Omolo Ochilo v Nation

Media Group Limited whose details have already been discussed in varied places

in this article.

d) The statement was false/Untrue

As stated by Winfield and Jolowicz, a true statement cannot amount to defamation

under any circumstance. The case of Polycarp Omolo Ochilo v Nation Media

Group Limited8 the court stated that in a defamation suit the plaintiff must prove

the following elements in order to succeed;

a. …The statement was false

b. The publication was published with malice.

e) That the publication of the statement has caused or is likely to cause

serious harm to the reputation of the claimant (While slander is

actionable per se, libel is not)

While a resultant harm or damage is not a requirement or an element in slander, in

libel the plaintiff must prove that the defamatory statement has caused him damage
or likely to injure his/her reputation. The case of Masumbuko Yerry Kombe v

7
Nation Media Group & Another vs. Hon. Chirau Mwakwere –Civil Appeal No. 224 of 2010
8
Polycarp Omolo Ochilo v Nation Media Group Limited [2019] eKLR
Kibiwott Koross & another [2014] eKLR9 affirmed that “A statement if published
can be defamatory if it has caused or is likely to cause serious harm to the
reputation of the claimant.” The same position was portended in the case of
Joseph Njogu Kamunge v Charles Muriuki Gachari10 where the court stated that
“…In other words, the words complained of must be shown to have injured

the reputation, character or dignity of the plaintiff. Abusive words may not be

defamatory per se. The words must be shown to have been construed by the

audience as defamatory and not simply abusive.”

f) The defendant was negligent or acted with absolute malice without

determining the truth

The case of Kitto v Chadwick & Another11 held in relation to malice that “Where

the allegations made are false and the same are not disputed by correspondence or

evidence and in the absence of any attempt to show some belief in the truth of the

allegations, then malice is established and there is no sustainable defence.”

In the same way, Odunga J in the case of Phineas Nyagah V Gitobu Imanyara12

stated that “Evidence of malice may be found in the publication itself if the

language used is utterly beyond or disproportionate to the facts. That may lead to

an inference of malice. ........ Malice may also be inferred from the relations

9
Masumbuko Yerry Kombe v Kibiwott Koross & another [2014] eKLR
10
Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR
11
Civil Appeal No. 9 of 1975 Kitto v Chadwick & Another (1975) EA 141
12
Phineas Nyagah V Gitobu Imanyara (2013) eKLR
between the parties.......The failure to inquire in the facts is a fact from which

inference of malice may properly be drawn.”

Standard/Test for Defamation

According to Gatley on Libel and Slander, the standard for defamation is what a

reasonable person reading the article would perceive.

The standard of opinion is that of right-thinking/reasonable persons generally. To

be defamatory an imputation need to have no actual effect on a person's reputation;

the law looks only to its tendency. A true imputation may still be defamatory,

although its truth may be a defence to an action brought on it; conversely untruth

alone does not render an imputation defamatory.

The standard/test for Defamation

According to Halsbury’s Laws of England 4th Edition Volume 28 (Page 23)

In deciding whether or not a statement is defamatory, the court must first consider

what meaning the words would convey to the ordinary man. Having determined

the meaning, the test is whether, under the circumstances in which the words were

published, a reasonable man to whom the publication was made would be likely to

understand them in a defamatory sense.

Similarly, Lord Atkin in Sim v Stretch [1936]13 established that the test answers the

question; ‘would the words tend to lower the [claimant] in the estimation of right-

thinking members of society generally?’

In the case of Ernest Omondi Owino & another v Felix Olick & 2 others14, one of

the leading cases in Kenya on defamation, the court was called upon to determine

if the publications made by the defendant (Star Newspaper), a national newspaper,

were defamatory. Kiarie Waweru J held that the test to determine whether a

statement is defamatory is an objective one which depends on what a reasonable

person on reading the statement would perceive.

Right of Reply

The right of reply is a statutory right provided to a defamed party to respond to the

precipitating libelous publication. It affords the person an opportunity to use the

same amount of space or time as the original libelous statement. The right of reply

can also be a means for those who seek access to the mass media to disseminate

their views in opposition to statements previously broadcast or published. The core

point of the right of reply is that the person who has been libelled may answer in

kind. Section 7A (1) of Defamation Act provides that Any person or body of

13
Sim v Stretch [1936] 52 TLR 669
14
Ernest Omondi Owino & another v Felix Olick & 2 others [2021] eKLR
persons shall be entitled to a right of reply to any factual inaccuracy affecting them

which has been published in a newspaper and

which is damaging to the character, reputation or good standing of that person or

body of persons.

Defences

1. Justification

The defence requires the defendant to prove that, on the balance of probabilities,

all alleged imputations complained of by the plaintiff are “substantially true” in

substance and in fact. According to Defamation Act Section 14, the law states that

in any action for libel or slander in respect of words containing two or more

distinct charges against the plaintiff, a defence of justification shall not fail by

reason only that the truth of every charge is not proved if the words not proved to

be true do not materially injure the reputation of the plaintiff having regard to the

truth of the remaining charges.

According to Peter Carter - Ruck on Libel,

The defence of justification cannot succeed unless the defendant proves that the

expression of opinion was based upon the facts........ if the facts upon which the

comment purports to be based does not exist, the comment cannot be fair..........

there are two qualifications to the general rule in the first place, where the facts
commented upon are contained in a privileged document such as a parliamentary

paper or a report of judicial proceedings, the defendants comments upon the fact

set out in such reports is entitled to protection as fair comment even though the

facts contained in the privileged document or referred to in the judicial

proceedings, turns out to be untrue.

In the case of Machira t/a Machira & Co. Advocates vs. East African Standard
15
, the court affirmed that;

“…A Defendant is permitted to plead justification only where it is clear that the

allegations he made and are complained of are true in fact or substantially so. He

cannot be allowed to set out a version . . . For him to rely on justification, he must

accept the Plaintiff’s version of the statement or a statement which is in sum

identical with the Plaintiff’s version.

2. Fair comment

The defence of fair comment asserts that the comment is fair on a matter of public

interest. For this defence to succeed, the defamatory content must be a 'comment

based on facts' and not a mere 'assertion of facts'. In the Halsbury’s Laws of

England Fourth Edition Vol 28 pg 45 para 145, the authors state;

‘The defences of both fair comment and qualified privilege are defeated by proof

that the defendant published the words complained.’

15
Machira t/a Machira & Co. Advocates vs. East African Standard (2001) KLR 638,
According to section 15 of the Defamation Act, the law states that In any action

for libel or slander in respect of words consisting partly of allegations of fact and

partly of expression of opinion, a defence of fair comment shall not fail by reason

only that the truth of every allegation of fact is not proved if the expression of

opinion is fair comment having regard to such of the facts alleged or referred to in

the words complained of as are proved.

It was established in the case of Nation Media Group & Another v Alfred N. Mutua

[2017] eKLR that “To sustain the defence of fair comment, the appellants were

required to demonstrate that the words complained of are comment, and not a

statement of fact; that there is a basis of fact for the comment, contained or referred

to in the article complained of; and that the comment is on a matter of public

interest [ see Gately on Libel and Slander, 8th edition, 1981 (Sweet & Maxwell) at

paragraph 692 at page 291)

3. Truth

A publication cannot be defamatory if it is true. The burden of proof is on the

defendant to prove that the statement was truth. The defence of truth can still stand

even in circumstances where the substance of the statement is true even if there are

some minor inaccuracies or inaccuracies with the statement. For example, in the

case of Alexander v Eastern Railway Co 16 where the claimant brought an action in

16
Alexander v Eastern Railway Co [1865] 6 B & S 340
libel against a notice by the defendant that he had been convicted of travelling

without paying fare and was fined 9 pounds with an alternative three weeks jail

term if he was unable to pay. The notice was accurate except on the fact that the

alternative jail term was actually 14 days. It was held that the defence succeeded

since the publication was substantially true.

4. Publication without malice

The defendant can argue that the publication of the defamatory statements was

without malice. The court in the case of Joseph Njogu Kamunge v Charles

Muriuki Gachari [2016] eKLR explained malice in the following terms:

“Malicious here does not necessarily mean spite or ill will but there must be

evidence of malice and lack of justifiable cause to utter the words complained of.

Evidence showing the defendant knew the words complained of were false or did

not care to verify can be evidence of malice” According to the Defamation Act

Section 12 (1), In any action for libel contained in a newspaper or other periodical

publication it shall be a defence for the defendant to show that such libel was

inserted in such newspaper or periodical without malice and without gross

negligence, and that before the commencement of the action, or at the earliest

opportunity thereafter, he inserted in the same newspaper or periodical publication

a full apology for the said libel, or, if the newspaper or periodical publication in

which the said libel appeared should ordinarily be published at intervals exceeding

one week, had offered to publish the said apology in any newspaper or periodical

publication to be selected by the plaintiff.

According to section 12 (2) of the Act, the defence is only available when at the

time of filing his defence, the defendant has made a payment into court by way

of amends.

5. Unintentional defamation

Unintentional defamation is a defence in defamation suit if the defendant can prove

that the defamatory statement was innocently published and is ready to make

amends. The law provides that the defence can be used if an offer was made as

soon as practicable after the defendant received notice that they were or might be

defamatory of the plaintiff, and has not been withdrawn According to Defamation

Act Section 13 A person who has published words alleged to be defamatory of

another person may, if he claims that the words were published by him innocently

in relation to the plaintiff, make an offer of amends.

6. Absolute privilege

The newspaper reporting of judicial proceedings is covered by the defence of

qualified privilege. According to Section 6 of the Defamation Act of 1970, “A fair

and accurate report in any newspaper of proceedings heard before any court

exercising judicial authority within Kenya shall be absolutely privileged. The case
17
of Khasakhala v Aurah affirmed that absolute privilege would be enjoyed by a

defendant who has made a fair and accurate report in his newspaper provided that

such a report does not contain blasphemous, seditious or indecent matter.

Qualified Privilege

Proof of malice defeats the defence of qualified privilege. The defence is

established in section 7 of the Defamation Act and it applies to a far wider range of

occasions and reports including where the reporter has a moral or social duty to

make the report and recipient has an interest to receive it. The reports must be fair

and accurate.

In the case of Musikari Kombo v Royal Media Services Limited [2018] eKLR the

court held as follows in relation to the defence:

“The essence of this defence is an attempt to balance two competing but vital

interests in society; the individual’s right to have their character and reputation

protected and safeguarded from false, unwarranted and malicious or scurrilous

attacks on the one hand, and the public’s right to know as exercised and fed by

freedom of expression, which is an indispensable feature of a free and democratic

society as well as a major tool for public accountability.”

17
Khasakhala v Aurah (1995-1998) 1EA 112
Similarly, the position of the Supreme Court in relation to the defence was stated in

the case of Uhuru Muigai Kenyatta vs. Baraza Limited [2011] eKLR where Rawal

DCJ held that

While taking defence of justification or qualified privilege in the defamation case,

the defendant was required by law to establish the true facts and the plaintiff has

no burden to prove the defence raised by the defendant. Once verified, the

justification or qualified privilege does not insert the defendant and in any event,

the onus that the same is true rests on the defendants to make it a fair publication.

Parliamentary Reports

Section 9 of Defamation Act states that it is a defence if the defendant can prove

that the publication was an excerpt or a copy or extract from, or abstract of a

parliamentary report. This is proven by producing to the court such copy, together

with an affidavit verifying such parliamentary report and the correctness of such a

copy.

The defence was successfully relied upon by the defendant in the case of Polycarp

Omolo Ochilo v Nation Media Group Limited18 where they argued that the article

was based on report of parliamentary proceedings of 28th October, 2008 thereby

affording the defendant the absolute defence of parliamentary privilege. That the

publication was without malice, was bonafide and made in public interest. The

claim of loss and damage was denied.

18
Polycarp Omolo Ochilo v Nation Media Group Limited [2019] eKLR
 References

W V H Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell,

2002), p. 405

Parmiter v Coupland [1840] 6 M & W 105

W V H Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell,
2002), p. 405

Gideon Mose Onchwati v Kenya Oil Co. Ltd & another [2015]

Polycarp Omolo Ochilo v Nation Media Group Limited [2019] eKLR

Khasakhala v Aurah (1995-1998) 1EA 112

Alexander v Eastern Railway Co [1865] 6 B & S 340

Machira t/a Machira & Co. Advocates vs. East African Standard (2001) KLR 638,

Sim v Stretch [1936] 52 TLR 669

Ernest Omondi Owino & another v Felix Olick & 2 others [2021] eKLR

Masumbuko Yerry Kombe v Kibiwott Koross & another [2014] eKLR

Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR

Civil Appeal No. 9 of 1975 Kitto v Chadwick & Another (1975) EA 141

Phineas Nyagah V Gitobu Imanyara (2013) eKLR

Nation Media Group & Another vs. Hon. Chirau Mwakwere –Civil Appeal No.
224 of 2010

Gideon Mose Onchwati v Kenya Oil Co. Ltd & another [2015]

Musikari Kombo v Royal Media Services Limited [2018] eKLR