Establishing what qualifies as defamation/definition
The test to determine whether a statement is defamatory is now well settled in various cases where it has been held that it is an objective test which depends on what a reasonable person on reading the statement would perceive. Halsbury’s Laws of England 4th Edition Volume 28 states at Page 23 thus:-
The test to determine whether a statement is defamatory is now well settled in various cases where it has been held that it is an objective test which depends on what a reasonable person on reading the statement would perceive. Halsbury’s Laws of England 4th Edition Volume 28 states at Page 23 thus:-
“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.”
Salmond on Torts, 7th Edition and Martha Karua v Moses Kuria [2017]e KLR pointing to defamation being or involving a false derogatory statement made against a person without lawful justification.
Ingredients of a defamation case
John Ward v The Standard Limited [2006] e KLR on the ingredients of defamation and George Mukuru Muchai v The Standard Ltd HCC NO. 2539/1997 on the most important ingredient of defamation case being the effect of the spoken or written words in the mind of third parties about a complainant and not how he or she feels the words portray him or her.
Case Laws:
Musikari Kombo v Royal Media Services Limited [2018] eKLR
The court stated that the law of defamation was concerned with the protection of an individual’s character and provided for what need to be proved by a claimant to succeed in a defamation suit.
(See also the cases of S M W v Z W M [2015] eKLR and that of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR)
New York Times v Sullivan 376 US 254 [1964] a case which establishes that an alleged publisher is not liable for publishing pertinent facts on a public figure.
Court of Appeal case of Royal Media Services Limited & Another v Jakoyo Midiwo [2018] eKLR where the court held that damages are not awardable to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice”, that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.
Likely issues for determination suit
i. Whether the defendant’s publications concerning the plaintiff was defamatory of the plaintiff?
ii. Whether the said publications were true in fact and substance or whether the same were false, malicious, negligent and/or reckless?
iii. Whether the defendant was justified to make the said publications in its form, manner and style?
iv. Whether the said publication disparaged and discredited the plaintiff’s reputation and injured his character and exposed him to hatred, ridicule, scandal, odium or contempt?
v. Whether the said publications exposed the person of the plaintiff to danger or jeopardy?
vi. Whether the general and aggravated damages are payable in the circumstances of this case and if so, how much?
vii. Whether the plaintiff is entitled to an injunction sought
viii. What is the appropriate order as regards the costs of this suit?
Analysis
The burden of proof lies with the Plaintiff to prove his case on a balance of probabilities as stipulated in Section 109 of the Evidence Act which provides that the burden of proof lies with that person who wishes the court to believe in its existence and that he who asserts a fact must prove, as stipulated in Section 107 of the Evidence Act.
See section 107 of the Evidence Act, Cap 80 Laws of Kenya - the burden of proof lies on he who asserts and in this case, the burden of proving that the alleged material was published and were defamatory lay on the plaintiff.
Whether the defendant’s publications concerning the plaintiff was defamatory of the plaintiff?
A detailed discussion is derived from the case of Elisha Ochieng Odhiambo v Booker Ngesa Omole [2021] eKLR
"On the first issue as framed, of whether the defendant’s publications concerning the plaintiff was defamatory of the plaintiff, In Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR, the Court of appeal stated as follows regarding defamation, and I have no reason to differ:
“Speaking generally a defamatory statement can either be libel or slander. Words will be considered defamatory because they tend to bring the person named into hatred, contempt or ridicule or the words may tend to lower the person named in the estimation of right-thinking members of society generally. The standard of opinion is that of right-thinking persons generally. The words must be shown to have been construed or capable of being construed by the audience hearing them as defamatory and not simply abusive. The burden of proving the defamatory nature of the words is upon the plaintiff. He must demonstrate that a reasonable man would not have understood the words otherwise than being defamatory. See Gatley on Libel and Slander (8th edition para. 31).
The ingredients of defamation were summarized in the case of John Ward V Standard Ltd , HCCC 1062 of 2005 as follows:-
"……The ingredients of defamation are:
The statement must be defamatory.
The statement must refer to the plaintiff.
The statement must be published by the defendant.
The statement must be false."
61. In Halsbury’s Laws of England(Supra), a defamatory statement is defined as :
“…a statement which tends to lower a person in the estimation of the right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt ridicule to convey any imputation on him disparaging or injuries to him in office, profession, calling, trade or business.”
62. In Phinehas Nyaga vs Gitobu Imanyara [2013] eKLR it was held that defamation was not about publication of falsehoods against a plaintiff but rather, the plaintiff must show that the published falsehood disparaged his reputation and lowered him in the estimation of right thinking members of the society generally.
63. In SMW vs ZVM [2015] eKLR , the Court of Appeal held that in determining the words for purposes of defamation, the court does not employ legal construction but that the words complained of must be construed in their natural and ordinary meaning.
64. In the case of Newstead vs London Express Newspaper Ltd [1940] 1 KB 377 [1939] 4 ALL ER 319, it was held as follows:-
“Where the plaintiff is referred to by name or otherwise clearly identified, the words are actionable even if they were intended to refer to some other persons. It is not essential that the plaintiff must be named in the defamatory statement; where the words do not expressly refer to the plaintiff they may be held to refer to him if ordinary sensible readers with knowledge of the special facts could and did understand them to refer to him.”
65. Thus, to prove defamation, the claimant must establish or demonstrate that the matter complained of was defamatory in nature, that the defamatory statement was uttered to someone else other than the person who was said to have been defamed and that the defamatory statement was published maliciously.
66. In other words, the elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right minded persons in the society or they must tend to cause the plaintiff to be shunned or avoided by other persons. The words complained of must be shown to have injured the reputation, character or dignity of the plaintiff. Abusive words may not be defamatory perse. The words must be shown to have been construed by the audience as defamatory and not simply abusive. The burden of proving the above is upon the plaintiff to demonstrate that a reasonable man would not have understood the words otherwise than being defamatory.
67. Further, the words must be malicious. Malicious here does not necessarily mean spite or ill will but there must be evidence of malice and lack of justifiable cause to utter the words complained of. Evidence showing the defendant knew the words complained of were false or did not care to verify can be evidence of malice. In Ann Wairimu Njogu vs Radio Africa Limited [2017] eKLR, it was held that malice also had to be inferred from the alleged defamatory statement. In addition, the defamatory words must be shown to have been published by the defendant. (See the case of James Njagi Joel v Junius Nyaga Joel [2020] eKLR)."
Contradictions in Civil cases
Court of Appeal in Peter Njoroge Kamau v Attorney General [2017] eKLR (GBM Kariuki, Sichale and Ole Kantai JJA) had this to say regarding such contradictions in dates in civil cases
“ On 24th March 2016, the Resident Magistrate delivered judgment in the suit in which he found that the dates given in evidence on the shooting of the appellant were inconsistent; that the inconsistency “cast doubt on the claim” and that “looked at as a whole (the doubt) (sic) is quite material to the claim.”
7. The learned Resident Magistrate proceeded to find that the appellant had “failed to establish the matters pleaded.” Said the Magistrate in his judgment:-
“There is simply no evidence before me to demonstrate that the plaintiff (appellant) was as he stated shot (sic) on the 28.10.2007 (sic) without which evidence there is no purpose in proceeding further to determine whether indeed he was as claimed shot by the police.”
The decision of this Court in the case of Erick Onyango Ondeng versus Republic [2014] eKLR to support the proposition that not every contradiction or particulars as to time and date of a happening of an event warrants rejection of such evidence, unless such contradictions are grave and affect the main substance of the case.
The learned Judge went on to deal with the issue of discrepancies relating to the date of the shooting and arrived at the conclusion that “it is not clear when the shooting took place. The documents in support of the claim also points (sic) to different dates....”
Moreover, although it does not now arise in view of what we have stated above, the issue of conflicting evidence on the shooting did not, ipso facto, mean that no shooting took place. This being a civil and not a criminal matter, the standard of proof would be on balance of probabilities. The fact that a witness does not remember precisely when injury was sustained or inflicted does not mean that no injury was suffered.
See section 107 of the Evidence Act, Cap 80 Laws of Kenya - the burden of proof lies on he who asserts and in this case, the burden of proving that the alleged material was published and were defamatory lay on the plaintiff.
Whether the defendant’s publications concerning the plaintiff was defamatory of the plaintiff?
A detailed discussion is derived from the case of Elisha Ochieng Odhiambo v Booker Ngesa Omole [2021] eKLR
"On the first issue as framed, of whether the defendant’s publications concerning the plaintiff was defamatory of the plaintiff, In Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR, the Court of appeal stated as follows regarding defamation, and I have no reason to differ:
“Speaking generally a defamatory statement can either be libel or slander. Words will be considered defamatory because they tend to bring the person named into hatred, contempt or ridicule or the words may tend to lower the person named in the estimation of right-thinking members of society generally. The standard of opinion is that of right-thinking persons generally. The words must be shown to have been construed or capable of being construed by the audience hearing them as defamatory and not simply abusive. The burden of proving the defamatory nature of the words is upon the plaintiff. He must demonstrate that a reasonable man would not have understood the words otherwise than being defamatory. See Gatley on Libel and Slander (8th edition para. 31).
The ingredients of defamation were summarized in the case of John Ward V Standard Ltd , HCCC 1062 of 2005 as follows:-
"……The ingredients of defamation are:
The statement must be defamatory.
The statement must refer to the plaintiff.
The statement must be published by the defendant.
The statement must be false."
61. In Halsbury’s Laws of England(Supra), a defamatory statement is defined as :
“…a statement which tends to lower a person in the estimation of the right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt ridicule to convey any imputation on him disparaging or injuries to him in office, profession, calling, trade or business.”
62. In Phinehas Nyaga vs Gitobu Imanyara [2013] eKLR it was held that defamation was not about publication of falsehoods against a plaintiff but rather, the plaintiff must show that the published falsehood disparaged his reputation and lowered him in the estimation of right thinking members of the society generally.
63. In SMW vs ZVM [2015] eKLR , the Court of Appeal held that in determining the words for purposes of defamation, the court does not employ legal construction but that the words complained of must be construed in their natural and ordinary meaning.
64. In the case of Newstead vs London Express Newspaper Ltd [1940] 1 KB 377 [1939] 4 ALL ER 319, it was held as follows:-
“Where the plaintiff is referred to by name or otherwise clearly identified, the words are actionable even if they were intended to refer to some other persons. It is not essential that the plaintiff must be named in the defamatory statement; where the words do not expressly refer to the plaintiff they may be held to refer to him if ordinary sensible readers with knowledge of the special facts could and did understand them to refer to him.”
65. Thus, to prove defamation, the claimant must establish or demonstrate that the matter complained of was defamatory in nature, that the defamatory statement was uttered to someone else other than the person who was said to have been defamed and that the defamatory statement was published maliciously.
66. In other words, the elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right minded persons in the society or they must tend to cause the plaintiff to be shunned or avoided by other persons. The words complained of must be shown to have injured the reputation, character or dignity of the plaintiff. Abusive words may not be defamatory perse. The words must be shown to have been construed by the audience as defamatory and not simply abusive. The burden of proving the above is upon the plaintiff to demonstrate that a reasonable man would not have understood the words otherwise than being defamatory.
67. Further, the words must be malicious. Malicious here does not necessarily mean spite or ill will but there must be evidence of malice and lack of justifiable cause to utter the words complained of. Evidence showing the defendant knew the words complained of were false or did not care to verify can be evidence of malice. In Ann Wairimu Njogu vs Radio Africa Limited [2017] eKLR, it was held that malice also had to be inferred from the alleged defamatory statement. In addition, the defamatory words must be shown to have been published by the defendant. (See the case of James Njagi Joel v Junius Nyaga Joel [2020] eKLR)."
Contradictions in Civil cases
Court of Appeal in Peter Njoroge Kamau v Attorney General [2017] eKLR (GBM Kariuki, Sichale and Ole Kantai JJA) had this to say regarding such contradictions in dates in civil cases
“ On 24th March 2016, the Resident Magistrate delivered judgment in the suit in which he found that the dates given in evidence on the shooting of the appellant were inconsistent; that the inconsistency “cast doubt on the claim” and that “looked at as a whole (the doubt) (sic) is quite material to the claim.”
7. The learned Resident Magistrate proceeded to find that the appellant had “failed to establish the matters pleaded.” Said the Magistrate in his judgment:-
“There is simply no evidence before me to demonstrate that the plaintiff (appellant) was as he stated shot (sic) on the 28.10.2007 (sic) without which evidence there is no purpose in proceeding further to determine whether indeed he was as claimed shot by the police.”
The decision of this Court in the case of Erick Onyango Ondeng versus Republic [2014] eKLR to support the proposition that not every contradiction or particulars as to time and date of a happening of an event warrants rejection of such evidence, unless such contradictions are grave and affect the main substance of the case.
The learned Judge went on to deal with the issue of discrepancies relating to the date of the shooting and arrived at the conclusion that “it is not clear when the shooting took place. The documents in support of the claim also points (sic) to different dates....”
Moreover, although it does not now arise in view of what we have stated above, the issue of conflicting evidence on the shooting did not, ipso facto, mean that no shooting took place. This being a civil and not a criminal matter, the standard of proof would be on balance of probabilities. The fact that a witness does not remember precisely when injury was sustained or inflicted does not mean that no injury was suffered.
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