Defamation
Character assassination –defamation
Ingredients
Faisity of statement
Statement must be defamatory
Clear reference to the plaintiff
It must be published –presence of some witness
Types of defamation
Libel – visual, print form, audio and visual. It is permanent and severely punishable.
Slander– through hearing, audio, words spoken or signs, temporally, arises when in the
spur of a moment or when provoked.
Defenses
| I. | Truth |
| II. III. IV. |
Fair comment of matters of public interest Privilege – for certain classes of persons (lawyer en client, doctor ,patient) Apology – should be done in the right manner en accepted by the defendant. |
Defamation — ie publication of false statements regarding Peter Njau without lawful
justification. This type of defamation is libel because it was in print and permanent form.
Confirmation that it is indeed defamation is based on the following.
Falsity of statement – it later turned out that the allegations against Peter Were false.
Defamatory– the church administration eventually barred Peter from participatory in the
church activities (lowered his image in the society)
Reference to plaintiff- the article clearly alledged Peter Njau to have committed the act.
Publication- it is clear that the information reached other persons including the church
administration.
Therefore Peter can successfully sue for;
Damages for legal injury and the compensation payable shall be determined by Peter’s
status in society and the extent of defamation.
He must apply for an injuction order to stop further publication.
He must demand for an unconditional apology to be made in writing to him and in the same
manner to be published as an article and delivered to the church administration.
Hassa Payuka & Mrs Rose Brown
Occasions when a statement would enjoy privilege and hence not actionable
Privilege arises where a person is in a justified position to state that which would
otherwise be defamatory. Privilege is either absolute or qualified in nature.
Absolute privilege
Privilege regardless of presence of malice on the part of maker.
It is based on the principle “ the interest of the state is the supreme law”
Instances of absolute privilege
Parliamentary proceedings within parliament.
Judicial proceedings ie between the judge, advocates and witnesses presenting
relevant evidence.
Military proceedings in the court martial.
State proceedings and communication between ministers or to the government.
Judicial reports fairly and accurately published in the media.
Qualified privilege
Such privilege can be challenged where there is malice on the part of the maker. In some
instances the two will overlap.
Instances of qualified
| I. | Communications made in the course of duty when the maker had to communicate with a third party eg communication by public officers. Communications made in self protection of the makers interest eg under sudden provocation. Communication made in protection of common interests between persons sharing the same interest eg husband and wife. Communications made to those in public positions eg information given to police inorder to stop crime. |
| . | |
V. Fair report in judicial or parliamentary proceedings.
– Essential aspects of defense of four comments in an action for defamation
The comment must be fairy relevant and on matters of public interest.
– It must be expressing an opinion and not alleging a fact
– It must not exceed the limits of fair comment
– It must not have been published maliciously
Limitation of action
The Kenya limitation of actions acts provides statutory limitation period of filing legal
claims. Every specific legal wrong has its own limitation period which must be respected.
The limitation period of filing claims based on contracts is six yrs and this period starts
running from the moment when contractual breach occurs.
The limitation period of filing claims regarding repossession of land is 1 2yrs and this
period starts running when continuous possession started.
Limitation for filing claims based on tort is 3yrs and starts running from the moment to
legal injury is sustained.
Time stops running during legal disability eg insanity or severe sickness including when a
person is in lawful custody and it resumes when such disability ends.
Where the wrongs are continuing in nature eg defamation, trespass, nuisance ever new
wrong has its own limitation period to be counted from the moment injury occurs
Where the wrong concerns fraud the limitation period starts running when fraud is
discovered.
Where a person fails to file a claim within the required limitation period he losses his right
to sue
Limitation of government liability in Tort
– The liability of government in Tort is limited in accordance with provisions of the
government proceedings act.
– The limitations are as follows;
– Government shall be liable in tort where an adult of sound mind would have been
liable.
– Government would be liable under vicarious liability for wrongs committed by
government officers in the course of duty for government.
– Government would be liable in negligence for wrongs arising due to negligence of
the government.
– Government would be liable under occupiers liability for injury’s arising to lawful
users within the government control premises.
However government shall not be liable for torts committed by public officers appointed
eg city council or members of public corporation eg KMC, KPA, KRA,KPLC etc
Negligence and limitation of action.
As a prisoner John was in the care of government and in such circumstances should
anything happened to him government must be answerable. In as much as he was injured
while in transit government had hired the transport and it is therefore expected that John
sues both the government ie prisons and the airline company as jointly liable for his injury.
This injury was due to negligence and lack of foreseeability. The Airline Company and
government owned John the duty of care. Legally government has liability in tort in the
same way an adult person of sound mind has. The statutory limitation period of filing
claims based on Tort is 3yrs but these periods shall not run where the injured person had
a legal disability such as severe sickness or imprisonment. John does therefore have a
valid excuse of filing his claim after six years because legally his three year period only
starts running upon his release from jail. Government can maintain a defense that the
airline company was an independent contractor because government did not in any way
control the company’s work. However these can only arise where the airline Company is
not owned by government. In this regard government shall only have reduced its liability.
