Abusive words must be shown to have been construed by the audience as defamatory and not simply abusive.

James Njagi Joel v Junius Nyaga Joel

Civil Appeal 96 of 2011

High Court at Embu

E Muchemi, J

January 29, 2020

Reported by Ribia John

Tort Law – defamation – elements of defamation – defamatory words – words that may be classified as defamatory - abusive words - whether abusive words could be defamatory - whether the words “satan”, “dog” and “witch” were defamatory – what were the circumstances in which abusive words could be construed as defamatory and not simply abusive

Brief Facts

At the trial court, the respondent filed the suit against the appellant seeking general damages for defamation as well as costs and interests. In particular the respondent claimed that the words “satan”, “dog” and “witch” were defamatory. The trial court found that the respondent had been subjected to embarrassment and humiliation and proceeded to award the respondent Kshs. 80,000/= as general damages together with costs and interest of the suit.

Aggrieved by the decision of the trial court, the appellant filed the instant appeal on grounds that the claim for defamation was not proved. In particular, the appellant contended that the words “satan”, “dog” and “witch” were insults and were incapable of being defamatory statements,

Issues

1. What were the elements of the tort of defamation?
2. what were the circumstances in which abusive words could be construed as defamatory and not simply abusive
3. Whether the words “satan”, “dog” and “witch” were defamatory.

Held

1. The elements of the tort of defamation were that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right minded persons in the society or they must tend to cause the plaintiff to be shunned or avoided by other persons. The words complained of must be shown to have injured the reputation, character or dignity of the plaintiff.
2. Abusive words could not be defamatory per se.  The words must be shown to have been construed by the audience as defamatory and not simply abusive. The burden of proof was upon the plaintiff to demonstrate that a reasonable man would not have understood the words otherwise than being defamatory.
3. The words complained of must be malicious. The term “malicious” did not necessarily mean spite or ill will but there must be evidence of malice and lack of justifiable cause to utter the words complained of. Evidence showing that the defendant knew the words complained of were false or that he did not care to verify the correct position could be evidence of malice. The defamatory words must be shown to have been published by the defendant.
4. A statement was defamatory when it had a tendency to bring a person to hatred, ridicule, or contempt or which caused the person to be shunned or avoided or had a tendency to injure the person in his office, profession or calling. The ingredients of defamation were: -
   1.  the statement must be defamatory.
   2.  The statement must refer to the plaintiff.
   3.  The statement must be published by the defendant.
   4. The statement must be false.
5. Defamation was the act of harming the reputation of another by making a false statement to a third person.   A statement was defamatory of the person of who it was published if it tended to lower him in the estimation of right thinking members of the society generally or it exposes him to public hatred, contempt or ridicule or it caused him to be shunned or avoided. A plaintiff in a defamation case must prove that the words were spoken or written by the defendant, that those words referred to the plaintiff, that those words were false. That the words were defamatory or libelous and that the plaintiff’s reputation was injured as a result.
6. The words uttered against the respondent were uttered in the presence of another person who knew the respondent. If one was called “satan”, “dog” and “witch” in the presence of one or more persons, those words were defamatory unless the defendant could prove that the words were true of the plaintiff’s character. The trial court correctly held that the defamatory words were published.
7. The appellant and the respondent were not in good relations at the time the words were uttered. There was an existing land dispute between the two and that the family had just concluded a meeting on that day that discussed some pertinent issues. Malice on part of the appellant was proved. The respondent proved the case on a balance of probabilities against the appellant.
8. In assessing damages in an action for defamation the court had to consider the particular circumstances of each case, the plaintiff’s position and standing in society, the mode and extent of publication, the apology, if offered and at what time of the proceedings, the conduct of the defendants from the time when libel was published up to the time of judgment.
9. In determining damages, the sums should be fairly compensatory in the light of the nature of the injury to reputation and that a restrained hand in the award of damages is desirable since the court must maintain stable bearing. The award should also appear realistic in all the circumstances.

Appeal dismissed.

Orders

1. The quantum of damages, Kshs. 80,000 awarded to the respondent was reasonable.
2. Costs awarded to the respondent.

Cases

East Africa

1.Butt v Khan (1982 – 88) KLR 1- (Explained)

2.Machira, John Patrick v Wangethi Mwangi & another Civil Case No 1709 of 1996 [2001] eKLR – (Cited)

3.Mwangi, Jane Wanjeri v Jane Nyambura Gathira [2008] eKLR – (Cited)

4.Nyaga, Phinehas v Gitobu Imanyara Civil  Suit No 697 of 2009 [2013] eKLR – (Explained)

5.Swanya, Wycliffe A v Toyota East Africa Ltd & another  Civil Appeal No 70 of 2008 [2009] eKLR – (Cited)

6.Ward, John v Standard Limited Civil Case No 1062 of 2005 [2006] eKLR – (Explained)

Texts and Journals

1.Peel, WE., Goudkamp, J., (Eds) (2012) Winfield and Jolowicz on Tort: Sweet and Maxwell 19^th Edn

Statutes: None referred to

Advocates:

1.Mr Kathungu for Appellant

2.Ms Muriuki for Githongori for Respondent