Case Summary and Outcome

The Secretary General of the Kenyan Central Organization of Trade Unions (“COTU”), Francis Atwoli, along with the COTU chairman, treasurer, deputy treasurer, and two COTU trustees, filed a civil defamation suit for 500 Million Kenyan Shillings against Kazungu Kambi, the Ministry of Labor’s Cabinet Secretary, and three Parliament members.  Atwoli claimed that they had linked him and other COTU members to the death of a member of parliament named George Muchai and sought an injunction to prevent the defendants from using or uttering the allegedly defamatory statements. The High Court of Nairobi dismissed the case for lack of evidence.

Facts

Francis Atwoli, the Secretary General of the Central Organisation of Trade Unions (“COTU”), brought a civil defamation case against Kazugu Kambi, the Cabinet Secretary of the Ministry of Labour. He sought to restrain Kazungu Kambi from making defamatory statements linking him to the death of a Member of Parliament named George Muchai. According to Atwoli, at the funeral of Muchai, Kambi and the others had said the following: “[T]he six COTU officials are responsible for Hon. Muchai’s death, we want to see them in handcuffs for Muchai’s murder.”  Atwoli alleged that the complained of comments “meant that he was a conman, a fraudster, a crook, a thief, a criminal and a man who leads a gang of murderers who killed the late Hon. Muchai” and that the Plaintiffs made the statements knowing that they were false and malicious and as a result of his “profession, integrity and status had been greatly injured”. Thus, it would be in the interest of justice if Kambi and others were enjoined from continuing to link them to the murder of Muchai.[4] Atwoli and the other COTU officials also argued that the Defendants’ status as public figures and officials meant that their statements would be taken seriously and that they should have made the statements to the police instead of going public. [5]

The Defendant denied making the statements and also argued that the plaintiffs had failed to demonstrate with certainty how the words complained of were defamatory.[6] Further, the defendants urged that in making its decision regarding whether or not to grant the injunction the court “be careful in balancing the reputation of an individual vis a vis the freedom of expression of the others”[7]

Decision Overview

The Judgment in this case was handed down by Justice Alfred Mabeya. He held that injunctions in defamation cases could only be issued in the clearest cases and it was the court’s duty to balance the competing interests of the public, the right to freedom of speech and the private interest to reputation, as required by Article 33 of the Kenyan Constitution.[21]

It was held that according to law, in order to grant damages in a defamation case, it must be proven that the exact words that defame the complainant must exist in a publication. Justice Mabeya stated that he had looked at various national newspapers in search of  the defamatory words about which Atwoli had complained, but he found none. This made it difficult to prove defamation and award damages.[20]

He held that there was insufficient evidence to ground a defamation claim. He further held that even if he were to find Kambi guilty of defamation, the orders sought by Atwoli were too general and ambiguous to grant damages, especially damages of such a large amount.[23]

Thus, Justice Mabeya declined to issue an injuction against Kambi finding the applicaiton to be without merit. [24]