Defamation refers to the act of spreading false statements that harm an individual's reputation. In Kenya, defamation is considered a civil offense, allowing the aggrieved party to pursue legal action for compensation.
To successfully win a defamation case, the plaintiff must
establish the following key elements:
- Publication:
The false statement must have been communicated to a third party,
regardless of whether the third party believed the statement or not.
- Falsity:
The statement must be proven false to be considered defamatory. However,
truth can serve as a valid defense against defamation claims.
- Defamatory
Nature: For a statement to be actionable, it must be defamatory, meaning
it lowers the reputation of the individual in the eyes of reasonable
people.
- Damages: The plaintiff must demonstrate that their reputation has been harmed as a direct result of the defamatory statement. This harm can encompass damage to personal relationships, business prospects, or emotional well-being.
Defenses against
Defamation:
Several defenses can be used to counter defamation claims,
including:
- Truth:
As previously mentioned, if a statement is true, it serves as an absolute
defense against defamation.
- Justification:
This defense applies when a statement was made in good faith and based on
verifiable facts.
- Fair
Comment: A defense used when a statement is a genuine expression of
opinion on matters of public interest and made in good faith.
- Absolute
Privilege: Protects certain communications, such as those made during
judicial proceedings or parliamentary debates.
- Qualified
Privilege: Safeguards specific communications made in the course of
business or in the interests of public safety.
Damages:
In successful defamation cases, the plaintiff may be awarded
damages. The court determines the amount based on the severity of harm caused
by the defamatory statement.
Legal Precedent:
In the case of Jacqueline Okuta & another v Attorney
General & 2 others [2017] eKLR, the High Court of Kenya ruled Section 194
of the Penal Code, which addressed criminal defamation, as unconstitutional.
The court held that criminal defamation infringed upon the constitutional
rights to freedom of speech and information.
Conclusion:
Defamation is a significant legal concern in Kenya, and
those affected by it should seek legal guidance. While various defenses exist,
it is crucial to establish the defamatory nature of the statement and prove
resulting damages. Consulting with legal experts ensures a proper understanding
of rights and the appropriate steps to address defamation cases effectively. We welcome you at Lugogo Odhiambo Advocates for legal guidance.