REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CAUSE NO. OF 2023.
NANCY WAMBUI MUTHOGA……………………..……………………………..CLAIMANT
VS
MEEHIR………………………………………………………………………...…………1ST
RESPONDENT
MR. RAJAH SHAH…………………………………………….…..…………………..2ND
RESPONDENT.
MERITS OF DEFAMATION
Defamation is defined as publishing false and defamatory statements concerning
another person without lawful justification. In the Kenyan jurisdiction the law on
defamation is derived on both statutes, Defamation Act Cap 36, and common law.
In this case, the words said by the 1 st and 2nd defendants are;
1. THAT the 1st and 2nd Defendants called the claimant a witch and practicing
sorcery in their premises, which is not true.
2. THAT the 2nd Defendant called the claimant a thief, which is not true.
This amounts to slander, under Section 3 of the Defamation Act that states;
“In any action for slander in respect of words calculated to disparage the
plaintiff in any office, profession, calling trade or business held or carried
on by him at the time of the publication, it shall not be necessary to allege
or prove special damage, whether or not the words are spoken of the
plaintiff in the way of his office, profession, calling, trade or business.”
Slander requires actual proof of damage of the part of the Plaintiff, and as a result
of these malicious words from the Defendants, the claimant eventually lost her job
and livelihood.
She also endured humiliation and demeaning treatment from her former
employees.
There are three main elements of defamation;
1. The statement must be defamatory.
2. The statement must refer to the claimant.
3. The statement must be published/said to another person other than the
claimant.
These 3 elements have been adopted in various cases in Kenya. In Nation Media
Group Limited and 2 Others v John Joseph Kamotho and 3 Others (Civil
Appeal No 284 of 2005 (unreported) , it was stated that the statements complained
have to be defamatory in character, secondly that the statements referred to the
claimant or that he could be identified, and thirdly, that the statements were
published or communicated to someone other than claimant.
A statement is said to be defamatory if it destroys/injures the
Plaintiff/Claimant’s reputation.
The case of Parmeter V Coupland (1840) 6 MCE W.105 laid down the basis of
this by holding that the words complained of were circulated to injure the reputation
of another by exposing them to hatred, contempt or ridicule.
In Father Samuel Waweru V Samuel Mburu & The Standard, the court
adopted this position and further held that;
“there is no wholly satisfactory definition of defamatory imputation and
three formulae have been particularly influential;
i. Would be imputation tend to lower the plaintiff in the estimation of
right thinking members of the society generally.
ii. Would be imputation tend to cause others to shun or avoid the
plaintiff.
iii. Would the words tend to expose the plaintiff to hatred, contempt or
ridicule.”
In Alexander Mwinyi V Lewa Conservancy HCCA No.1039 of 2004, the court
stated that;
“It is trite law that no matter how defamatory the statement can be, there
can be no action unless and until that such a statement is communicated
by the defendant to a person other than himself.”
The Claimant in this case avers that the defendant spread malicious claims that she
practiced sorcery and had ran away with company cash in the presence of other
employees. This satisfies the above condition.
In S M W v Z W M [2015] eKLR, it was held that a statement is defamatory of the
person of whom it is published if it tends to lower him/her in the estimation of right
thinking members of society generally or if it exposes him/her to public hatred,
contempt or ridicule or if it causes him to be shunned or avoided.
The Claimant was subjected to ridicule upon losing her job as per the witness
statement. It is my submission that this suit has satisfied all the three elements of
defamation and as such has merit before this court.
