In the recent past, there has been a rise in defamation cases in the courts especially in relation to defamation made online. In my view this is progressive in defining and growing jurisprudence on free speech in Kenya. While Article 33 of the Constitution provides for the right to freedom of expression, Article 33(3) states that in exercise of this freedom, every person should respect the rights and reputation of others. in Article 33(3) brings forth issues of defamation, slander and libel. To prove defamation, a plaintiff must prove the following in court –

• That a statement in relation to them was made either in writing or orally and that the statement was false;
• That the false statement was published, broadcast or made to a third person;
• That the statement was made negligently, recklessly or maliciously with no attempt to correct, corroborate or authenticate it; and
• That the plaintiff suffered harm or loss due to the false statement.

This said, a defendant in a defamation suit may submit the following defences –

• The statement made against the plaintiff was true;
• The statement complained of was, or formed part of, a statement on a matter of public interest;
• The defendant reasonably believed that publishing the statement complained of was in the public interest;
• The defendant made reasonable efforts to authenticate the statement, perhaps with the plaintiff; or
• The defendant had privilege in making the statement –
  • Statement made on the floor of parliament,
  • Communication between spouses, 
  • Communication as part of court proceedings, or 
  • Qualified privilege in the case of journalists.

Jurisprudence on defamation has been progressive.

In Jacqueline Okuta & Another V Attorney General & 2 Others [2017] EKLR, criminal defamation under section 194 of the Penal Code was declared to be unconstitutional. This means that where one claims that defamatory statements have been made against them, they have no option but to file a civil suit against the author or publisher of the statements. In the past, one was arrested and charged in a criminal court for defamation. Many countries around the world are moving away from criminal defamation.

I propose a reading of the case of Lohé Issa Konaté v. The Republic of Burkina Faso which was decided by the African Court of Human and Peoples rights. In this case the court overruled the conviction of the journalist Lohé Issa Konaté who had faced harsh criminal penalties in Burkina Faso following charges of defamation for publishing newspaper articles that alleged corruption by a state prosecutor. The court also ruled that the conviction of Konate was disproportionate and interfered with his right to freedom of expression. The court ordered Burkina Faso to repeal custodial sentences for defamation and amend its legislation in line with international standards and ensure sanctions for defamation are proportionate.

In Robert Alai V The Hon Attorney General & Another [2017] EKLR, the offence of undermining the authority of a public officer contrary to section 132 of the Penal Code was also declared to be unconstitutional and an arbitrary limitation of the right to freedom of expression. The offence was mainly brought against persons who had criticised elected or appointed public officials; a means to ward of criticism against the State.

Section 29 of the Kenya Information and Communication Act that provided for the offence of misuse of a licensed telecommunication device was declared to be unconstitutional in the case of Geoffrey Andare v Attorney General & 2 others [2016] eKLR. Further, section 84D of the Kenya Information and Communication Act that created an offence by criminalizing the publishing of obscene information in electronic form was also declared to be unconstitutional in the case of Cyprian Andama v Director of Public Prosecution & another;Article 19 East Africa (Interested Party) [2019] eKLR.

The above decisions emphasize the fact that defamation is indeed a civil matter. The criminal law process has no place in litigating defamation matters.

One case relating to online defamation is that of CFC Stanbic Bank Limited V Consumer Federation Of Kenya (COFEK) Being Sued Through Its Officials Namely Stephen Mutoro & 2 Others [2014] EKLR. In this case COFEK on their website published an article entitled “How true is this allegation on Stanbic Bank Juba Branch on Foreign Exchange Transactions.” In the article, there were allegations against the CFC Stabic Bank’s, Juba branch, of lack of integrity in Foreign Exchange dealings, breach of Bank of South Sudan and Central Bank of Kenya regulations, arrogance by the CFC Stanbic’s Foreign Exchange dealer, breach of consumer rights and lack of integrity and responsibility by the CFC Stanbic’s management team.

COFEK opposed the application submitting that it was neither the author nor originator of the article complained of. COFEK further submitted that it was the legitimate expectation of the anonymous author that the COFEK would cause incisive investigations on the issues raised in the article and that the article constituted fair public comment and was not defamatory of the CFC Stanbic Bank. The court ruled that the article complained of was not only defamatory but its continued publication on the world wide web might have continued to damage the CFC Stanbic Bank’s international business.

Having said the above, courts have awarded disproportionately high damages in some defamation cases. The following decisions illustrate this –

• Christopher Ndarathi Murungaru v John Githongo [2019] eKLR – damages worth Kshs. 27,000,000.
• Samuel Ndung’u Mukunya v Nation Media Group Limited & another [2015] eKLR – damages worth Kshs. 20,000,00.
• Alnashir Visram V Standard Limited [2016] EKLR – damages worth Kshs. 26,000,000.

In as much as defamation suits are civil in nature, the courts should not award disproportionately high damages because this would have a chilling effect on the exercise of the right to freedom of expression and free press.

In conclusion, where one alleges that defamatory statements have been made against them and that the statements contain the legal components needed to prove defamation, they just out to file a defamation suit. In any case the defendant has a wide range of defences available to them.