Did someone’s social media post spread lies about you? Can you prove that the post was false and aimed at maligning you? Then you could be sitting on millions, going by recent trends in court.
Former politician Joseph P Kennedy, whose son John went on to become the 35th US President, once said “don’t get mad, get even”. His words, which were also immortalised by the popular American rock band Aerosmith in a hit song by the same name, have come to ring true for dozens of social media users in Kenya.
Over the last few years, the Judiciary has become a nimbus cloud, raining money on several individuals and institutions aggrieved by social media posts they deemed offensive.
A Nation review of judgments and rulings delivered in the past five years indicates that social media is quickly becoming the new breeding ground for defamation and slander, as victims smile all the way to the bank.
In 2015, Anerlisa Muigai, a daughter of Keroche Breweries founder and Nakuru Senator Tabitha Karanja, agreed to borrow Sh13 million from Mwananchi Credit. The facility was to help her friend Ben Kangangi, who was in a financial bind.
Repayment of the loan got ugly, with Mwananchi Credit at some point threatening to auction off Ms Muigai’s car. She involved the police and thought the matter was settled when her car was freed. Three years later, just after her 30th birthday, Mwananchi Credit director Dennis Mwangeka Mombo demanded repayment of the loan.
In lengthy posts on social media, Ms Muigai accused Mr Kangangi and Mr Mombo of colluding to defraud her of Sh20 million.
On March 21, 2018, Mr Mombo filed a defamation claim against Ms Muigai. He maintained that Ms Muigai defaulted on a loan, filed a suit to stop recovery and then posted false and offensive accusations against him on social media. The following day, Mr Kangangi also filed a defamation claim against Ms Muigai.
On November 14, 2019, Justice Cecilia Githua ruled that Ms Muigai had indeed defamed Mr Mombo and ordered her to pay him Sh2.5 million in damages.
“The offending publication depicted him as a person of questionable integrity who is associated with criminal activities. The scope of the publication was far and wide given the medium of publication … which is accessible to an unquantifiable number of people both locally and globally. There is no doubt that the damage of character sustained by [Mr Mombo] was substantial,” Justice Githua said.
Mr Kangangi’s case took longer to conclude. He claimed that he was not aware of the loan until Ms Muigai mentioned that Mwananchi Credit was seeking to recover the funds. He allegedly escorted Ms Muigai to her mother, Ms Karanja, to seek assistance in repaying the loan.
He added that, after Ms Karanja refused to repay her daughter’s loan, Ms Muigai posted the offensive words on Facebook and Instagram. Justice Said Chitembwe on March 31, 2022, agreed that Mr Kangangi had been defamed, and ordered that Ms Muigai pay Sh2 million in damages.
Ms Gloria Diffu got into a verbal altercation with Aggrey Muhambi of Penthouse Group over payment for granite that the latter had ordered. Ms Diffu accused Mr Muhambi of non-payment on two Facebook groups; Builders and Co-Creators and Buyer Beware. Mr Muhambi filed a defamation claim and was awarded Sh700,000 in damages after Ms Diffu failed to defend the suit.
Ms Manisha Hirani was awarded Sh7 million in damages for defamation after her former boss, Mital Virchand Shah, accused her of theft. Mr Shah called several mutual associates and made claims that offended Ms Hirani.
Ms Hirani argued in court that, since the calls were made, she was unable to secure employment, especially in the close-knit Asian community where the false claims by her former boss had spread like wildfire. Some of the calls were made via WhatsApp, court records show.
Nation has established that dozens of other defamation cases are still pending determination, but could lead to hefty awards for the plaintiffs.
Ms Diana Omach Marua, the wife of popular gospel artiste Bahati, found herself in trouble with a company she did social media influencing for. Justice Christine Meoli has issued orders barring her from posting defamatory content about Limavest Ltd and its owners, Alice Shicco Ngunjiri and Leonard Waweru Kuria.
After some of the company’s clients posted complaints about the company on social media, Ms Marua used her Instagram and YouTube channels to give her side of the story by clarifying that she was only an influencer.
The celebrity’s attempts to distance herself from the company’s activities saw her join in on an online lynching of Limavest and its owners. The company and its owners sued, and are now seeking millions in compensation from Ms Marua.
Lawyer John Njomo told Nation that laws on reputation damage have expanded and cover social media platforms. He said owners of the platforms can also be held liable for defamation if users post offending content.
Facebook last month closed its moderation office in Nairobi, which was tasked with monitoring content on its platform. The firm is shifting to artificial intelligence to moderate the content. Still, it is currently the social media platform that has sparked the most defamation cases in Kenya.
For social media pages like Facebook’s Buyer Beware in which people’s phone numbers and other details are revealed, the publishers and administrators also risk being fined for violation of privacy.
The courts have already established that administrators of Facebook pages can also be held liable for comments made by other people. Justice Alfred Mabeya in 2016 found Jackson Njeru and Jackline Outa culpable for moderating conversations by other people on a Facebook page.
Right of privacy
“The right of privacy is guaranteed by Article 31 of the Constitution of Kenya 2010 which prohibits a person from revealing information relating to another person’s family or private affairs.”
“Therefore, if in the same defamatory publication, private affairs including the person’s phone number are published without his consent, then the person can be able to pursue a claim for infringement of his right to privacy. It is possible to pursue the claims on defamation and privacy in the same Constitutional Court without having to file two separate cause of actions,” Mr Njomo said. He added that images and signs can also be deemed defamatory.
Unga Group, Mediheal Hospital, London Distillers, Housing Finance, West Kenya Sugar and Standard Investment Bank are some of the prominent institutions that are seeking redress in court over social media posts that they claim are false and offensive.
Judges presiding over their cases have issued orders barring the respondents from posting material that could be defamatory to the complaining institutions.
Former Kericho governor Paul Chepkwony, former Meru governor Kiraitu Murungi and former Gatanga MP Peter Kenneth are some of the politically exposed individuals who have also sued for defamation over social media posts. Mr Chepkwony has sued another politician, Paul Chirchir alias Tarimbo, over posts forwarded in WhatsApp groups.
Mr Chirchir accused the former governor of financial impropriety in two WhatsApp groups —Timbilwet Legacy and South Rift Leaders Forum.
Mr Kenneth has obtained orders barring political commentator Tony Gachoka from posting defamatory material about him.
Mater Hospital was in 2019 ordered to pay Kings Wear Ltd Sh1 million following a defamatory email sent to Safaricom. The hospital’s letter entailed details of a disagreement over the 2014 Mater Heart Run, an annual marathon that doubles up as a fundraiser.
Kings Wear could have gotten more money, but it failed to adduce evidence in the form of invoices or other documents that would have proven loss of business on account of Mater Hospital’s email. The National Land Commission’s Reginald Okumu was also found culpable in 2019 on account of an email he sent in his capacity as a Nairobi Swimming Association official.
He had made offending remarks about Kenya Swimming Federation vice-chairperson Patrick Muyah in an email to National Olympics Committee of Kenya vice-chairperson Ben Ekumbo.
The email was in regard to squabbles within the swimming fraternity.
The numerous pending cases indicate that the Judiciary will likely mint new millionaires in the near future, to serve as a deterrent to those who spread slander when settling scores through social media.
Judges have dismissed several cases where plaintiffs failed to produce evidence of how they were defamed, or where the respondents have justified that their social media posts were true.
Much like the traditional defamation cases, truth and justification are still applicable defences to defamation cases.