Defamation in Kenya: Lessons from Onchieku v The Standard Limited

In the digital age, protecting one’s reputation is more critical than ever. Defamation, whether through print or online media, can have devastating consequences for individuals and businesses.

The March 21, 2025, Kenyan Court of Appeal’s three-judge bench (KIAGE, ACHODE & ODUNGA JJ.A) ruling at Nairobi in Daniel Onchieku v The Standard Limited & Juma Kwayera (Civil Appeal No. 134 of 2019) offers valuable insights into the legal requirements for proving defamation in Kenya.

This case is significant because it highlights the challenges individuals face when their reputation is tarnished by false information. At Kubwa & Company Advocates, we break down the case and its implications for businesses and individuals seeking to safeguard their reputation.

Case Background: A Defamation Claim Against The Standard

Daniel Onchieku, an employee of the National Social Security Fund (NSSF), filed a defamation lawsuit against The Standard Limited and journalist Juma Kwayera. The claim stemmed from an article published on March 15, 2009, titled “Now Police Dragged into Cash Scandal at NSSF.” The article falsely implicated Onchieku in a Kshs. 10 million scandal involving forged documents, damaging his reputation.

The High Court dismissed Onchieku’s claim in 2018, finding that he failed to prove defamation on a balance of probabilities. On appeal, the Court of Appeal upheld the High Court’s decision on March 21, 2025, reinforcing the strict evidentiary standards for defamation claims in Kenya.

Five Key Legal Principles in Defamation

The Court of Appeal outlined five essential elements of defamation, as defined by the Defamation Act and prior case law (S M W v Z W M [2015] KECA 602):

1. Publication: The statement must be written or spoken and communicated to a third party.
2. Reference to the Plaintiff: The statement must refer to the plaintiff, either by name or by inference.
3. Falsity: The statement must be false.
4. Defamatory Nature: The statement must lower the plaintiff’s reputation in the eyes of right-thinking members of society.
5. Injury to Reputation: The plaintiff must demonstrate tangible harm to their reputation.

The court emphasised that the plaintiff bears the burden of proof under Section 107 of the Evidence Act, requiring evidence to establish these elements on a balance of probabilities.

Why Onchieku’s Claim Failed

The Court of Appeal identified four key shortcomings in Onchieku’s case:

1. Failure to Specify Defamatory Words: Onchieku did not quote the exact defamatory words in his plaint, instead attaching the entire article and leaving it to the court to identify the offending parts. The court cited Veronica Wambui v Michael Wanjohi Mathenge [2015] eKLR, which mandates that specific defamatory words be pleaded explicitly.
2. Lack of Third-Party Evidence: Onchieku was the sole witness, relying on his testimony to prove reputational harm. The court noted that defamation requires evidence from third parties to show how the statement affected the plaintiff’s standing in society.
3. Insufficient Proof of Falsity: Onchieku claimed the article falsely described him as the officer in charge of the Rents and Income Department and implicated him in forgery. However, he failed to provide concrete evidence to disprove the article’s claims or demonstrate their defamatory impact.
4. Balancing the constitutional rights to freedom of expression with the right to dignity and privacy, underscoring that media publications must be scrutinised carefully to avoid unjust harm.

Four Key Lessons for Defamation Litigants

The Onchieku case offers critical takeaways for individuals and businesses pursuing or defending defamation claims in Kenya:

1. Plead with Precision: Always include the exact defamatory words in the plaint. General descriptions or references to an article’s substance are insufficient.
   1. Gather Robust Evidence: Collect testimony from independent witnesses to demonstrate reputational harm. Documentary evidence, such as employment records or official statements, can help prove falsity.
   1. Understand the Legal Threshold: Defamation claims require a high standard of proof. Consult experienced legal counsel to assess the strength of your case before proceeding.
   1. Act Promptly: Issue a demand letter to the publisher, as Onchieku did, to seek a retraction or apology before escalating to litigation.

How Kubwa and Company Advocates Can Help

At Kubwa and Company Advocates, we understand the complexities of defamation law and the importance of protecting your reputation. Our experienced legal team can guide you through every stage of a defamation claim, from drafting precise pleadings to gathering compelling evidence. Whether you’re seeking to hold a publisher accountable or defend against a defamation suit, we provide tailored solutions to achieve the best possible outcome.

Conclusion

The Onchieku v The Standard Limited ruling underscores the rigorous requirements for proving defamation in Kenya. By failing to plead specific defamatory words and provide third-party evidence, Onchieku’s claim could not meet the legal threshold. This case serves as a reminder that defamation litigation demands meticulous preparation and expert legal guidance.

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