Wangai v Tsimbiri & 10 others (Employment and Labour Relations Cause 11 of 2020) [2023] KEELRC 827 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defamatory words in the show cause letter and disciplinary committee minutes were published
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.
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.
Whether statements made within the faculty disciplinary committee were protected by absolute privilege
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.
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.
Whether the claimant was entitled to the remedies sought
No. The claim for defamation could not lie absent publication, so general damages, costs, interest and certificate of service were refused.
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.
Legal principles established
#- 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
#- 1.The entire cause is dismissed as it is found without merit
- 2.Costs of the suit awarded to the 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.