By Team
A Magistrate’s Court has awarded former Chief Executive Officer (CEO) of the Kenya Laboratory Technicians, Mr. Abala Wanga, Sh5 million for defamation.
Senior Principal Magistrate S.K. Onjoro of the Milimani Commercial Court awarded Abala Sh4 million in general damages for defamation and an additional Sh1 million in aggravated damages.
Abala had moved to court seeking damages for defamation arising from a public notice published by the 1st Defendant (Kenya Laboratory Technicians) in the Standard newspaper on 20th August 2014.
He argued that the publication—which stated that he was no longer an employee of the Kenya Laboratory Technicians and was not authorized to transact any business on its behalf—was false, malicious, and defamatory.
He contended that it injured his reputation, caused him embarrassment, and hindered his employment prospects.
However, the Defendants denied the claim, asserting that the publication was a true statement of fact, made in good faith, and for the legitimate purpose of protecting the public and the 1st Defendant from unauthorized dealings. They further raised the defences of justification, qualified privilege, and absence of malice.
Issues for Determination
In determining the case, the court considered:
- Whether the published words were defamatory of the Plaintiff.
- Whether the Defendants had established the defence of justification.
- Whether the defence of qualified privilege applied.
- Whether the publication was actuated by malice.
- Whether the Plaintiff was entitled to the reliefs sought.
Analysis
A statement is defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of society, exposes him to hatred, contempt, or ridicule, or causes him to be shunned or avoided.
The impugned publication stated that the Plaintiff “was no longer an employee” of the 1st Defendant and “was not authorized to transact any business on behalf of KMLTTB.” It further warned the public that the Board would not be liable for any transactions undertaken by him.
The Defendants argued that these words were a neutral, factual statement and not capable of bearing a defamatory meaning.
However, the court noted that it must consider the natural and ordinary meaning of the words as understood by a reasonable person.
The Magistrate observed that the publication, when read as a whole, implied that the Plaintiff was likely to pose a risk to the public by purporting to act for the 1st Defendant, and that the public needed to be warned against dealing with him.
Such an implication tended to lower Abala’s standing in the eyes of right-thinking members of society, suggesting untrustworthiness and lack of integrity.
“The Plaintiff testified—and it was not seriously disputed—that he received numerous inquiries from family, friends, and professional contacts expressing shock and concern over the notice. This supports the conclusion that the words were understood in a defamatory sense,” he said.
The Magistrate therefore ruled that the published words were defamatory of the Plaintiff.
Whether the Defence of Justification Applies
The defence of justification requires the defendant to prove that the defamatory statement was true in substance and in fact. The burden of proof lies on the defendant.
The Defendants contended that the statement was true because the Plaintiff had indeed left the employment of the 1st Defendant. While the cessation of employment was not disputed, the defamatory sting lay in the implication that the Plaintiff posed a risk to the public.
The Defendants attempted to justify this by referencing various allegations of misconduct against the Plaintiff, including criminal charges of fraud.
However, the Magistrate noted that at the time of publication (August 2014), the Plaintiff had not been convicted of any offence. He was subsequently acquitted of the fraud charges in Kiambu Criminal Case No. 201 of 2016 on 20th July 2018.
“A defence of justification cannot be sustained by relying on unproven allegations or charges that were later dismissed by a court of law. The Defendants have not adduced any evidence to show that, at the time of publication, the Plaintiff had actually attempted to transact business on behalf of the 1st Defendant or defraud the public,” the Magistrate observed.
The 2nd Defendant’s testimony in cross-examination further revealed that the publication was motivated by unproven suspicions rather than verified facts.
Therefore, the defence of justification fails.
Whether the Defence of Qualified Privilege Applies
Qualified privilege applies to statements made in the discharge of a legal, moral, or social duty, where the recipient has a corresponding interest in receiving the information.
The Defendants argued that the 1st Defendant, as a public body, had a duty to inform the public and protect them from unauthorized representations by a former employee.
However, the Magistrate noted that while an employer may have a legitimate interest in informing relevant parties of an employee’s departure, the manner and extent of publication must be reasonable and proportionate.
“In this case, the publication was made in a national newspaper nine months after the Plaintiff’s departure. No evidence was adduced to show that the Plaintiff had, during that period, held himself out as an employee or attempted to transact business for the 1st Defendant. The delay, coupled with the wide publication, suggests that the dominant motive was not merely to discharge a duty but to publicly discredit the Plaintiff,” he observed.
The defence of qualified privilege is also lost if the publication is actuated by malice. Based on the analysis, the court found that the publication was motivated by malice.
