A court has ordered a man to pay Ksh1.5 million after ruling that a WhatsApp message containing serious accusations against an advocate amounted to defamation.
The case arose after the man received pleadings in a land dispute in which the advocate was representing one of the parties. In response, he sent a WhatsApp message accusing the lawyer of fraud, corruption, criminal conduct, incompetence and being unfit to practise law.
The message was sent to a mobile phone used by the law firm's office and was received and read by an employee. Although it was neither posted publicly nor shared in a WhatsApp group, the court determined that sending it to another person was sufficient to establish publication for defamation purposes.
“The allegations directly attacked the advocate’s integrity, qualifications and professional competence and were capable of damaging his reputation,” Principal Magistrate L.A. Mumassabba held.
The defendant neither entered an appearance nor filed a defence and did not take part in the proceedings. He also provided no evidence to demonstrate that the allegations were true, constituted fair comment, were justified or were protected by privilege.
The court noted that the failure to file a defence did not, by itself, establish malice. However, it considered the circumstances in which the message was sent, the gravity of the accusations and the absence of an apology or retraction.
In determining the damages, the court took into account the advocate's professional standing, noting that he had been admitted to the Roll of Advocates in 1996.
The magistrate also considered the seriousness of allegations involving corruption, fraud and criminality, while noting that the publication was limited in scope.
There was no evidence that the message had been published in a newspaper, broadcast on television or radio, uploaded to a public website or shared on a public social media platform.
The court consequently awarded Ksh1.2 million in general damages and a further Ksh300,000 in aggravated damages, bringing the total award to Ksh1.5 million. It declined to grant separate exemplary or punitive damages.
However, the court rejected a broad permanent injunction that would have prohibited the defendant from making any defamatory statements about the advocate.
The magistrate found that such an order could extend beyond the conduct established in the case and potentially restrict lawful communication or comment.
The ruling highlights the potential legal consequences of messages sent through private communication platforms such as WhatsApp.
While a message may not be publicly posted or shared with a large audience, accusations that are false, defamatory, and communicated to another person can still expose the sender to legal action.
