The communication space in Kenya has expanded a great deal; more and more people have access to communication devices. These developments have made it easier to access and disseminate information.
It has also created new opportunities such as blogging and working as freelance journalists. In the course of distributing information, you may be accused of defamation. Defamation in Kenya is making statements that harm other people- most defamation cases in Kenya involve damaging a person’s public image or reputation.
The High Court declared sections of Kenya’s defamation law that allowed defamation to be prosecuted as a criminal offence unconstitutional, so it is unlikely that you will be committed to jail if you are found guilty of making defamatory statements.
However, if someone sues you for defamations and their suit is successful, the court will likely order you to pay the complainant damages—the damages could be in the range of millions. With that said, it is imperative to mount a compelling legal defence when someone accuses you of defamation.
Possible defences to defamation in Kenya
The complainant’s primary duty will be to prove that you communicated statements that were untrue, damaging, and non-privileged to third parties. As the plaintiff tries to prove that your statements had the said characteristics, you should be poking holes in their evidence, and showing that you did not make the alleged statements or your words don’t count as defamation.
Some of the possible defences to defamation are:
This is an absolute defence. The Kenyan law does not prohibit people from telling the truth, regardless of whether it damages people’s reputation. If you prove that the statements you made are correct, the suit will be dismissed.
The statements were not published:
For your statements to count as defamation, you must have distributed them to third parties, e.g., the public. The suit will be thrown out if you show that you didn’t publish the statements.
Opinion rather than facts:
Mere opinions are not considered defamatory statements— defamation involves false statements of facts. You can, thus, defend yourself against defamation accusations by proving that your statements were opinions rather than facts.
Whether your statements are considered facts or opinions depends on their wording and the context in which they are made. For instance, saying ‘so and so channelled public money into their private account ’ will be treated as a statement of fact, while ‘I think so and so is corrupt ’ will be regarded as an opinion.
These statements are protected from liability in defamation suits. The privilege could be absolute or qualified. Absolute privilege does not depend on the nature or intentions of the statements—the defendants are protected from liability regardless of how negative their statements were.
In Kenya, absolute privileges may apply to the judicial and legislative proceedings.
depends on the context in which the statements were made and the intent— it is conditional. Using qualified privilege as a defence will largely depend on how you argue out the case in court. Generally, you must show that they were reasonable grounds to make the statements.
For example, qualified privileges could apply if you made the statements to protect the public interest.
If the plaintiff already had a bad public image, you can use that as a defence to reduce your liability.
Defamation defence lawyers in Kenya
If you have been accused of defamation in Kenya, contact Wamaitha Waweru & Co. Advocates for consultation and help with preparing your defense.