Ola Energy Kenya Limited v Nyiro & 5 others (Environment and Land Appeal E33 of 2023) [2024] KEELC 5609 (KLR)

The DPP had filed a certificate under section 21(3) of the ODPP Act on the basis that continuance of criminal proceedings would not be worthwhile as the High Court had certified the constitutional issues raised as unresolved. However, the certificate did not amount to a full and valid termination of the proceedings because the DPP could still reinstate the charges, and it did not respond to the applicants' request that the charges be withdrawn. The Court therefore found it necessary to exercise its powers under Article 157(6).

The applicants and the interested party argued that criminal defamation has a chilling effect on the freedom of expression and of the media guaranteed under Article 33 of the Constitution, and that the offence denies an accused the defences of fair comment and justification available in civil defamation, thereby violating the right to a fair hearing under Article 50. The respondents, though served, did not participate in the proceedings. On the admitted facts and unopposed arguments, the Court found the provisions unjustifiable limitations.

It was contended, without contradiction, that an accused person in a criminal defamation case is denied the defences of fair comment and justification which are available to a defendant in a civil defamation case. This unequal treatment offended the right to a fair hearing and reinforced the conclusion that section 194 could not stand as a justifiable limitation under Article 24.