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ELRCDismissedELRC Cause Number 11 of 2020 (consolidating High Court Civil Suit 304 'A' of 2012 and High Court Civil Suit No 14 of 2015)· [2023] KEELRC 827 (KLR)

Wangai v Tsimbiri & 10 others (Employment and Labour Relations Cause 11 of 2020) [2023] KEELRC 827 (KLR)

Employment and Labour Relations Court
12 April 2023
6,981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan university lecturer's Kshs 15 million defamation claim failed because he couldn't prove the alleged defamatory statements were ever communicated to anyone outside the university's disciplinary process.

What this practically means

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Executive summary

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The claimant, a lawyer and senior lecturer at Egerton University, sued eleven respondents in two consolidated suits (High Court Civil Suit 304 A of 2012 and Civil Suit 14 of 2015, consolidated and transferred to this Court as ELRC Cause 11 of 2020) claiming damages for defamation. He alleged that the 1st to 8th respondents, at a faculty meeting of September 22, 2011, authored and published material accusing him of sexual harassment, sexual impropriety and academic intimidation of students; that these words were repeated in the notice to show cause of December 22, 2011 signed by the 9th respondent, in subsequent show cause letters, in an affidavit of the 10th respondent, and in the 2016 dismissal communication. He sought general damages, costs, interest and a certificate of service, suggesting Kshs 15,000,000 in damages. The respondents denied publication, contending that the allegations originated from student complaints, were conveyed confidentially in a sealed envelope, and that proceedings of the disciplinary committee were absolutely privileged; the claimant did not attend the meetings. Ten witnesses testified for the respondents. The court framed two issues: publication and entitlement to remedies. It found no publication outside the committee or university, the claimant having admitted the minutes were not publicly circulated and having adduced no evidence, including from the delivering security guard, that the letter was open. Relying on Pullman v Walter Hill, Huth v Huth and Amos KC Kale v Rebecca Gesora, the court held the disciplinary forum privileged and dismissed the entire claim with costs to the respondents.

Key legal issues

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01

Whether the defamatory words in the show cause letter and disciplinary committee minutes were published

Holding

No publication was proved. The letter was sent only to the claimant, the minutes stayed within the committee, and the claimant produced no evidence (including from the security guard) that the letter circulated further.

Reasoning

The court found the claimant admitted the notice to show cause was the standard way to commence discipline, and that minutes were not placed in any public forum. Reliance was placed on Pullman v Walter Hill and Huth v Huth, which establish that sending a statement to the person libelled, or an unclosed envelope with no proof of third-party reading, is not publication. The committee forum was held privileged.

p. 12
02

Whether statements made within the faculty disciplinary committee were protected by absolute privilege

Holding

Yes. The 1st to 8th respondents sat as faculty members in the ordinary course of business, and their deliberations and findings could not be defamatory.

Reasoning

Following Amos KC Kale v Rebecca Gesora, the court held that words written or spoken in the ordinary course of proceedings before a recognised court or tribunal are absolutely privileged, resting on public policy and the need to secure free and fearless discharge of public duty in the administration of justice. The disciplinary committee was such a forum.

p. 12
03

Whether the claimant was entitled to the remedies sought

Holding

No. The claim for defamation could not lie absent publication, so general damages, costs, interest and certificate of service were refused.

Reasoning

Having found no publication and no defamatory statement capable of founding liability, the court concluded there was no basis for any remedy. The claimant also failed to exhibit the CBA he relied on, and the university had followed its known complaint-handling mechanism after the claimant declined to attend meetings.

p. 12

Legal principles established

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  • Words spoken or written in the ordinary course of proceedings before a court or tribunal recognised by law are absolutely privileged and cannot found an action in libel or slander
  • A statement sent directly to the person of whom it is written does not constitute publication for purposes of defamation

Court orders

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  1. 1.The entire cause is dismissed as it is found without merit
  2. 2.Costs of the suit awarded to the respondents

Authorities

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Legislation

  • Employment ActSection 44(4)(e) and (g), Part II(6)
  • Collective Bargaining Agreement (UASU)Clause 16(i), 16(ii), Section 16
  • Universities ActSection 63, Section 63(3)

Cases cited (9)

  • Jones V Pollard
    (1997) EMLR 233
  • Biwott V Ian West and Another
    Nairobi HCC 1067 of 1999
  • John Ward V Standard Limited
    [2006] eKLR
  • Amos KC Kale & Another V Rebecca Gesora & Another
    [2017] eKLR
  • Selina Patani & Another C Dhiranji V Patani
    [2019] eKLR
  • Pullman -v- Walter Hill & Co
    (1891) 1 QB 524
  • Huth -v- Huth
    (1915) 3 KB 32
  • MJ vs DV
  • ELRC Cause number 224 of 2017 (claimant v respondents)
Jurisdiction invoked
Transfer of consolidated High Court suits to the Employment and Labour Relations Court (ELRC Cause No. 11 of 2020); employment-related defamation claim

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wangai v Tsimbiri & 10 others (Employment and Labour Relations Cause 11 of 2020) [2023] KEELRC 827 (KLR)", Case Analysis (2023). ELRC Cause Number 11 of 2020 (consolidating High Court Civil Suit 304 'A' of 2012 and High Court Civil Suit No 14 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/827/eng@2023-04-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.