ITHOUT going into the merits of the case in court, the public ought to be enlightened on some of the words and terminology in the contention between Deputy President William Ruto and activist Boniface Mwangi.
I will rely on a simple hypothetical example to explain. Kamau files papers in court accusing Wafula of uttering or writing certain words causing damage to his reputation. This is what you would call a claim.
Wafula, exercising his right of reply, has two options. He can file papers denying the accusation, even denying ever uttering or writing those words – this would be called a defence, or Wafula may opt to file a claim within Kamau’s claim with the intention of defending himself and offsetting Kamau’s claim, even surpassing its enormity.
In this case, not only does Wafula deny what he is accused of, he goes on to show why he either feels aggrieved and/or that that Kamau never had a reputation worthy of protection.
Before the case goes to trial, the conduct of civil cases dictates that there is exchange of documents (evidence) to be relied on – a process known as discovery. If, for any reason, either of the parties feels or is of the opinion that the other is withholding information critical to the proper adjudication of this dispute, they are free to seek the court’s intervention and an order by the court directing the issuance of this information must be obeyed before trial commences.
In this legal controversy, Kamau must show that Wafula made a statement, the statement was published, the statement caused an injury, the statement was false and the statement is not protected by privilege – as is one made by a witness giving testimony in a court of law.
This legal controversy of course touches on the delicate balance between one person’s right to freedom of speech and another’s right to protect their good name.
If Kamau is a public figure, he is subject to scrutiny and criticism – a higher priority is placed on the members’ of the public being allowed to speak their minds about elected officials and public figures. Kamau would therefore get lesser protection from alleged defamatory statements and face a higher burden when attempting to win the suit.
We follow the case between the DP and Boniface hoping to demystify the defamation laws vis-a-vis free speech as protected by the Constitution.