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Atwoli v. Kambi

Closed Expands Expression

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    July 10, 2015
  • Outcome
    Dismissed
  • Case Number
    Civil Suit No. 60
  • Region & Country
    Kenya, Africa
  • Judicial Body
    First Instance Court
  • Type of Law
    Civil Law
  • Themes
    Defamation / Reputation
  • Tags
    Public Officials

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Case Analysis

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]

 


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This was a civil defamation case that was lost on the ground that there was insufficient proof of the defamatory statements and harm caused to the complainant. This case expands expression. The court properly considered the duty to balance the competing interests of freedom of speech and the private right of reputation and concluded that there was insufficient evidence to warrant enjoining the speech of others.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Kenya, Kariunga Kirubua vs. Law Society of Kenya, Civil Appeal No. 117/2005 (2009)
  • Kenya, Giella Vs Cassman Brown, EA 358 (1973)
  • Kenya, Cheserem Vs Immediate Media Services and 4 others, 2 EA 371(2000)
  • Kenya, Gilgil Hills Academy Ltd Vs The standard Ltd, Civil Case 88 (2009)
  • Eng., Collins vs Jones, 1 QB 564 (1955)
  • Eng., Lougheed Vs CBC, 4 WWL 338 (1978)
  • Kenya, Constitution of Kenya (2010), art. 33.

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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