Though the Kenyan constitution grants every citizen the freedom of expression, some people go beyond its limits and utter or publish statements that may damage other people’s reputation. Besides damaging the victim’s reputation, defamation in Kenya might expose the victims to financial loss and bodily harm.
If you are a victim of defamation in Kenya, you can recover the damages you have suffered through a civil lawsuit.
What exactly is defamation in Kenya
Defamation can be defined as making statements that damage another party’s reputation. It can take the form of written statements (libel) or spoken defamatory statements (slander). The Kenyan defamation law tries to balance between the freedom of expression for the accused and the individual interests of the defamation victim. This means that the mere evidence that someone published or said false statements about you might not be enough to sustain a defamation claim.
In Kenya, defamation falls under civil law. However, criminal defamation existed in the penal code before 2017— defamation could be prosecuted as a criminal misdemeanor. That meant that an offender could be committed to up to two years in jail.
In 2017, the Kenya High Court declared sections of the penal code that established the offense of criminal misdemeanor as unconstitutional. The reason for the High Court’s declaration was that declaring defamation a criminal offense amounted to an unjustifiable infringement on the freedom of expression.
Being a civil offense, it means that the police and public prosecutors will not be involved in prosecuting the case—instead, the defamation victim should file a civil suit against the offender to recover the damages. A defamation suit has four main elements that the plaintiff must prove to win the suit
Elements of a defamation suit: What the complainant must prove
For a statement to qualify as defamation, the plaintiff must show that the statement was false, damaging, published, and unprivileged:
False: If the defendant wrote or uttered statements that they can prove as true, such statements don’t qualify as defamation —regardless of whether they were damaging. Also, most opinions as not regarded as defamatory; it is hard to classify opinions as true or false.
Published: For a statement to count as defamatory, it must have been disseminated to third parties. This means that another person, other than the complainant and the defendant, must have seen the statement. Note that ‘published’ in this context includes spoken statements.
Injurious: The complainant must prove that the statements in question caused them injury— this means that the statement brought them harm. This harm could be damaging their reputation, causing them to miss out on an opportunity, physical harm, among others.
Unprivileged: A privileged statement cannot count as defamatory. Such statements do not carry civil liability— you cannot recover damages from a person who makes such statements. Examples of privileged statements are witness testimonies in court and lawmakers’ submissions in parliament.
Some journalistic publications can qualify as privileged statements, provided that they are made in appropriate situations, with a reasonable cause, and without malice.
Defamation lawyers in Kenya
If you are a victim of defamation, you can recover both special (economic) and general (non-economic) damages from the offender. But before you go to court, you need to evaluate the case with an experienced lawyer to see if the facts you have can sustain a defamation case. Call Wamaitha Waweru & Co. Advocates for consultation on defamation matters in Kenya.