DEFENSES TO DEFAMATION.

1. Truth
A statement made by a defendant cannot be defamation if it is proven to
be true.
Also known as the defense of Justification as seen in the case of Digby V Financial News ltd.
In the defense of defamation, it is the onus of the defendant to prove that his statements
were true. This was seen in the Supreme Court of Nigeria in the case of Joseph Mangtup
Din vs African newspaper of Nigeria Ltd, where Adolphus Godwin Karib Whyte J.S.C held
that:- “It is well settled that the onus lies on the respondent to prove the truth of the
words in their ordinary and natural meaning.” The law of defamation, doesn’t accord
damages to an injury that results from true statements. This thus avers that truth is a
defense. Truth is an absolute defense.
The defendant is to establish the truth of the precise charge made, which is ultimately a
matter of interpretation of facts. The material question becomes whether the defendant’s
statements align with the truth.
In as much as the precise truth may be accepted, the standard of the truthfulness of the
defendant’s statements are based on the doctrine of substantial truth we can see this in the
case of Alexander V North Eastern Railway where a railway station published that the
claimant was a convicted of not paying the ticket and was fined and sentence to three weeks
in confinement. In fact, he was sentenced to two weeks in confinement.
From this case, we can also aver that the defendant need not prove the statement they
made to be true in their entirety, if the remaining charges do not materially injure the
reputation of the plaintiff.
In the case of Hon. Uhuru Muigai Kenyatta vs. Baraza Limited [2011] eKLR Rawal J
observed that the information that causes defamation will be assumed to be untrue until
the defendant proves otherwise.
With regards to this defense, motive is never questioned. This is because, the revealing of
the statement may vindicate the community from a looming danger that would have
resulted from trust given to the defendant, who may take advantage.
Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR
In this case, the appellant appealed the decision of the trial magistrate which upheld that he
had defamed the respondent, and he was to ordered to compensate 1,500,000/=. The
respondent pleaded the defense of truth. He however failed because he failed to show that
his statements were true. He said that the respondent Charles Muriuki defrauded people
and he isn’t trust worth. The defense failed.
 More Case Law.
- Peter Nge’ethe Ngari t/a P.N.N Funeral Services v The Standard Group Limited &
Njiraini M. Macharia.
- Royal Media Services Limited t/a Citizen TV & another v Alfred Amayio Mako
[2021] eKLR.
- Raphael Lukale v Elizabeth Mayabi & another [2016] eKLR. Case Metadata. Case
Number: Civil Case 7 of 2012.

2. Honest opinion
For this defence to succeed, the following conditions must be met:
- The statement must be a statement of opinion
- The statement complained of should indicate in general or specific terms the basis of
the opinion
- That an honest person could have held the opinion on the basis of any fact which
existed at the time the statement was published, or anything asserted to be a fact in a
privileged statement published before the statement complained of.
- Gatley on Libel and Slander, 9th edition, counsel argued that “the right of fair comment
is one of the fundamental rights of free speech and writing” and that “there are matters
on which the public has a legitimate interest or with which it is legitimately concerned
and, on such matters, it is desirable that all should be able to comment freely, and even
harshly, so long as they do so honestly and without malice.”
- Nation Media Group Limited & Kenfrey Kiberenge V Dr. Alfred N. Mutua ;
NMG published an article authored by Kenfrey Kiberenge, titled Dangerous Talk. The
article was on Dr. Afred Mutua who was then the government spokesperson. The author
referred to comments made by Dr. Mutua in interviews and other public platforms,
terming them as “adding fuel to the fire” at a time when Kenya was grappling with the
effects of post-election violence in 2008.
Dr. Mutua claimed that the article was defamatory to his character and profession in
that it was understood to mean that he is unfit to live with human being and he doesn’t
want Kenya to have peace.
The court of appeal held that the trial judge had erred in not allowing the defence of
honest opinion and set aside the judgement.
- Mong’are t/a Gekong’a & Momanyi Advocates vs. Standard Ltd [2002] eKLR; that if the
comment contains an inference of fact, the comment must be shown to be justified;
that the comment must be such as fairly to be described as criticism; and that the
comment must represent the honest opinion of the commentator and be published
without malice.
- J. P. Machira t/a Machira & Company Advocates vs. Wangethi Mwangi & another
[1998] eKLR, the Court said that malice “can be inferred from a deliberate, reckless, or
even negligent ignoring of facts” and that “deliberate lies can also be evidence of
malice.”
 - In Spiller & another vs. Joseph & others [2010] UKSC 53, Lord Phillips, President of the
Supreme Court of England, adopted with approval what the Court of Final Appeal of
Hong Kong characterized as the five “well established” “non-controversial matters” in
relation to the defence of fair comment;
i. The comment must be on a matter of public interest.
ii. The comment must be recognizable as comment, distinct from an imputation of
fact.
iii. The comment must be based on facts, which are true or protected by privilege.
iv. The comment must explicitly or implicitly indicate, at least in general terms,
what are the facts on which the comment is being made. The reader or hearer
should be in a position to judge for himself how far the comment was well
founded.
v. The comment must be one which could have been made by an honest person,
however prejudiced he might be, and however exaggerated or obstinate his
views.
3. Absolute privilege
This is a unique defence in that some situations are so important that those making
statements about them are not held liable for defamation even though the statements
are false.
However, statements made out of malice may not stand the test of this defence as was
held by Justice Jackson in the Saskatchewan Court of Appeal in MJ vs DV;
“Absolute privilege exists not to protect persons who have made malicious statements,
but to protect those involved in the justice system from necessity of having to weight
their words for fear of an action in defamation, it is designed to encourage freedom of
speech and communication in judicial proceedings, and its need is born out, at last in
part by necessity.”
Concerns itself with statements made in certain venues and is a complete defence. It is
irrelevant as to whether the defamatory speech was false or what the speaker’s intent
was.
It is a complete defence to defamation made in certain contexts where motive is
inconsequential.
The four categories include:
a) Executive Matters
b) Solicitor Client Communications
c) Parliamentary Proceedings
d) Judicial Proceedings

a) Executive Matters
As the topic suggests, it deals with the Executive arm of the Government. This is when a
member of the executive uses this defence for a defamatory statement they made so as
 to not be held liable. The issue comes in to whether all members of the executive have
this privilege or it is just certain high-ranking personnel.
Chatterton v Secretary of State for India
This is a leading case in determining absolute privilege in executive matters. The issue
was whether the letters sent by the Secretary of State of India to his Parliamentary
Under-Secretary was absolutely privileged.
Holding: it was held that the letters from the Secretary of State of India to his
Parliamentary Under-Secretary providing the materials for the answer to a
parliamentary question was absolutely privileged.
M Isaacs & Sons Ltd v Cook [1925]
A message from the High Commissioner for Australia to his Prime Minister about a
matter
of commerce which concerned the Government of Australia was held to be privileged.

b) Solicitor-Client Communications
This communication between a client and their solicitor on matters regarding judicial
proceedings that are pending. This might be confused by statements made during
judicial
proceedings but they are different.
The House of Lords has therefore held in Watson v M’Ewan that a witness making a
proof
after the issue of a writ, but before trial, is absolutely privileged.

Amos K. C. Kale & another v Rebecca Gesora & Thomas Letangule and Co. Advocates
[2017] eKLR, Ruling of the High Court, [2017] eKLR
This was a ruling where the 2nd Respondent who was being sued in their capacity as an
advocate, and was being sued jointly with their client (the 1st Respondent) because of
an affidavit the client had written containing defamatory statements.
The 2nd Respondent was praying for the suit to be struck down with the defence of
absolute privilege of attorney-client communications.
Judge J. Sergon agreed with the respondent and struck out the suit.

The judge while coming to this conclusion relied on Gatley on Libel and Solander, 9th
edition, paragraph 13,13; “An absolute privilege protects lawyers for the statements
not only made in court, but any statement made in response to inquiries by the other
side in litigation or contained in a pleading or other document incidental to the action.”

4. Qualified privilege
- In some circumstances a person needs to be free to tell the truth as they believe it even
though they may be wrong.
- It has the same effect as absolute privilege in that the statement cannot be used in a
court of law.
- In Hulsbury’s Law of England 4th Edition Vol. 28
“On grounds of public policy, the law affords Protection on certain occasions to a person
acting in good faith and without any improper motive who makes a statement about
another person even when that statement is in-fact untrue and defamatory. Such
occasions are called occasions of qualified privilege”
- The principal categories of qualified privilege are;
a) Limited communication between persons having a common and corresponding
duty or interest to make and receive the communication.
b) Communication to the public at large or to a Section of the Public made pursuant
to a legal, social or moral duty to do so in reply to a public attack.
c) Fair and accurate reports published generally or proceedings of specified persons
or bodies.
- Charles Katiambo Musungu v Dorine Lusweti [2021] eKLR
The appeal was dismissed upon the court establishing that there was malice. Where
malice is proved or inferred, the defence of qualified privilege is destroyed.
Facts
The appellant wrote a letter to the Provincial Director of Education concerning
irregularities in a school not mentioned. He stated that the principal and the bursar
were related and that there was misappropriation of funds because of their Husband-
wife relationship. The respondent saw the words as defamatory and filed a case in the
Magistrate court where she prevailed.
The counsel of the appellant in the appeal submitted that the Magistrate did not
consider the defense of qualified privilege Judgement For the defense to prevail it must
be shown that the defendant acted in good faith and that there was no malice Even
after the appellant was presented with facts that the bursar was not married to the
principal, he still maintained his stand. His failure to inquire about the facts
demonstrated malice.
- Corporal Francis Cherono Ngeny & 11 others v Sammy Kiprop Kilach
Here the defense prevailed Facts The defendant wrote a letter dated 19th September
2000 to the chairman of the Nandi District Security Committee which was copied to the
D.O, D.C and others.
The letter stated that the plaintiffs who were members of the ACK church which the
defendant was also a member were anti-development and had threatened to kill him.
The plaintiffs claimed that as a result people were avoiding them and they were hated
by the church.
Judgement
The defendant reported the matter to the necessary authority and the letter did not
reach any of the individuals to whom it was copied to. The plaintiffs did not wait for the
authority to finish investigation. It is the authority that told the defendant to compile
the words in a letter and therefore the defense prevailed and he was not held liable
5. Consent
Consent is the permission for something to happen or agreement to do something.
If a person gives their permission for publication, they cannot go against this later on by
claiming defamation.
An example of consent is an instance where someone telephones a newspaper with false
information about himself; such a person will not be able to sue in defamation when the
newspaper publishes it.
Consent can either be expressed or implied; expressed consent is given orally or in writing
whereas implied consent is consent given through action or conduct.
However, implied conduct is not as easy to use as a defence as expressed consent; this was
evident in the case of JMK and another v Standard Digital and another [2020] eKLR:
Facts
The plaintiffs are advocates of the High Court of Kenya and are also husband and wife and
had
posted their photo on the first plaintiff's Facebook account. The defendants had published a
video in all their social media handles titled, "Tips for healing your marriage when trust is
broken after infidelity" and had used the plaintiffs' picture as the cover photo. Due to the
video, the reputation of the plaintiffs, who were also respected members at their church,
was tarnished and they were even demoted from the post as marriage counsellors in the
church which resulted in them suing the defendants.
As part of their defence, the defendants submitted that by having posted their photo in the
first plaintiff's Facebook account, the plaintiffs had consented to the same being seen,
accessed, reshared or downloaded through third party service providers.
Issues
Whether the publication was defamatory
Whether the defamation was unintentional,
Whether the plaintiffs' right to privacy was breached.
Law
- Defamation Act; defamation involves words or materials that lower a person's
reputation or expose them to hatred, contempt, or ridicule.

- Section 13 of the Defamation Act provides a defense for unintentional defamation if

certain conditions are met.

- The right to privacy is protected under Articles 31, 28, and 40 of the Kenyan
Constitution.

Analysis
- The court determined that the publication implied the plaintiffs were involved in
infidelity, damaging their reputation.

- Despite the defendants' claim of unintentional defamation, they failed to prove they
took reasonable care before publishing the material or made timely amends.
 The defendants' use of the plaintiffs' photo without consent constituted a breach of their
right to privacy.

Holding
It was held that the purpose for posting that photo was not for its use by everyone hence
the defendants' contention could not hold. The court declared the video defamatory and
ruled in favor of the plaintiffs, awarding general damages for defamation.

CHAPMAN V LORD ELLESMERE

In this case, consent succeeded as a defence to defamation.
Facts
Don Pat, a horse, had won a race organized by a club called Jockey Club. The manner in
which the horse raced interested the stewards of the club who accordingly ordered the
horse to be examined. This was stipulated in the Rules of Racing of the Jockey Club.
The stewards held that the horse had been drugged and the case was taken before the
stewards of the club who were the defendants in this case. The plaintiff, Mr. Chapman, was
the trainer of the horse. He had to appear before the stewards and answer for the status of
the horse. He was accorded a fair hearing.
The stewards found that the horse was in fact drugged and as a result disqualified him for
that race and all future races. They also withdrew Chapman’s licence as a trainer.
Under the Racing Rules the stewards were authorized to publish their decisions in the
Racing Calender.
The plaintiff said that the statement meant that he had actually been involved in drugging
Don Pat. This, however, was held to be a meaning which could only be accepted by the
Court as an innuendo
Holding
The defence of consent was held by Slesser, L.J to avail the defendants because the plaintiff
had accepted the Rules of Racing (which were part of the terms and condition to get the
trainer’s licence) which permitted the publication of their decisions in Racing Calendar. That
the words published contained a defamatory meaning in the form of an innuendo, was a
risk the plaintiff voluntarily assumed by assenting to the rules of racing.

6. Peer reviewed statements in scientific or other academic journals

It is a form of qualified privilege.
They have undergone thorough review process by qualified peers in a particular field. The
qualified peers asses the accuracy, validity and significance of the information presented.

These statements carry credibility and reliability compared to non-peer reviewed

statements because the assertions or claims have been rigorously evaluated and validated
by experts in a particular field before being published in a scholarly journal or presented at
a conference.
 In order for this defence to work, the following conditions must be met
1. The statement should relate to scientific or academic matters
2. Before the statement was published in the journal an independent review of its
scientific or academic merit was carried out by the editor of the journal and one or
more persons with expertise in the academic matter concerned.
7. Operators of websites
It’s a defence for the operator to show that it was not he/she who posted
the statement on the website. It may however be lost if the operator of
the website acts with malice for instance by colluding with the person
posting.

8. Innocent publication
The defendant must show that:
- They were not the author or the editor or publisher of the material
- All reasonable care was taken
- They did not know that the material contained defamatory statements