Award of Kshs. 1.5 Million as general damages arising from a defamatory email.

Brief facts

The plaintiff was retained by the United Nations Sacco Limited as its Chief Executive Officer. On December 31, 2015 the plaintiff resigned from employment to concentrate on his personal business. The plaintiff claimed that on or about March 9, 2016, the defendant sent him an email from his private account and copied to 3 others. It was the plaintiffs testimony that the email sent to his juniors portrayed him in bad light especially since he was a role model to many employees. 

The plaintiffs case was that the email was defamatory in that in its ordinary meaning the email meant and was understood to mean that he engaged in fraudulent and unethical conduct during his tenure at the UN Sacco. The plaintiff alleged that the email published was false, malicious and defamatory and sought relief in the form of general damages, exemplary damages and costs of the suit.

Issues

Whether the email by the defendant was false, malicious and defamatory of the plaintiff.

Held

1. During the hearing, despite service, the defendants neither called any witness, participated in the proceedings nor filed their submissions hence the evidence by the plaintiff remained uncontroverted.
2. The pleadings contained the averments of the parties concerned. Until they were proved, or disproved, or there was admission of them or any of them by the parties, they were not evidence and no decision could be founded upon them. Proof was the foundation of evidence. Evidence denoted the means by which an alleged matter of fact, the truth of which was submitted to investigation, was proved or disproved. Averments were matters the truth of which was submitted for investigation. Until their truth had been established or otherwise they remained unproven.
3. There was no wholly satisfactory definition of defamatory imputation. Three formulae had been particularly influential:
   1. would the imputation tend to lower the plaintiff in the estimation of right-thinking members of society generally?'
   2. Would the imputation tend to cause others to shun or avoid the claimant?
   3. Would the words tend to expose the claimant to hatred, contempt or ridicule?
4. The question  on what defamation was related to the nature of the statement made by the defendant: words could be defamatory even if they were believed by no one and even if they were true.
5. The law of libel and slander was concerned with the protection of reputation. Defamation protected a person's reputation; that was the estimation in which he was held by others; it did not protect a person's opinion of himself nor his character. The law recognized in every man a right to have the estimation in which he stood in the opinion of others unaffected by false statements that injured his reputation.
6. The ingredients of defamation were:-
   1. The statement had to be defamatory.
   2. The statement had to refer to the plaintiff.
   3. The statement had to be published by the defendant.
   4. The statement had to be false.
7. The alleged defamatory email was sent to the plaintiff by the defendant and copied to other colleagues within the organization.
8. The impugned e-mail was defamatory of the plaintiffs character. The plaintiff was being called upon to refund or pay some monies that had been paid to him in form of kickbacks. There was no explanation from the defendant as to why the email was copied to other parties yet the content was personal. The only logical conclusion was that the defendant was out to inform third parties that the plaintiff had been taking kickbacks from the Saccos clients. The plaintiff had proved his case on a balance of probabilities.
9. The prayer for Kshs.15 million as damages was excessive. Those who were copied the e-mail were the plaintiffs former workmates. The e-mail was not published in the main media but was copied to a few people. An award of Kshs. 1.5 million would adequately compensate the plaintiff. There was no reason for granting exemplary damages.