A reckless WhatsApp group post can not only land you in hot water, but it can also cost you an arm and a leg, as recently experienced by Wycliff Asuga Nyaega.
Mr Nyaega, aka Enchui Ensacha, a Nyamira County-based WhatsApp group member and YouTuber, was ordered to pay Sh2.5 million to nominated Member of Parliament Irene Mayaka for defamation.
Mr Nyaega was found guilty of uttering the defamatory words in a video dated July 25, 2023, that brought the MP into disrepute.
The clip was widely shared on various WhatsApp groups, including 'Nyamira News and Updates', which has 457 participants and where Ms Mayaka is a member.
Mr Nyaega also shared the offending clip on the Whatsapp groups 'The future of Nyamira County', 'Nyamaiya & allied forum' and 'Egetureri Kiomogusii', each with at least 400 members.
The audio-visual clip was also aired on his YouTube channel 'Enchui Ensacha TV', which has over 100,000 subscribers.
Ms Mayaka filed a defamation suit at the Nyamira Magistrate's Court on September 1, but Mr Nyaega failed to appear in court to defend himself against the allegations despite being summoned.
The resident magistrate, Beniah Okong'o Odhiambo, heard the case and found that the Orange Democratic Movement (ODM) lawmaker's application had merit.
“The court has thoroughly scrutinised the contents of the above statements and has equally scrutinised the video as well as all the exhibits produced by the plaintiff and has established that indeed the said statements were defamatory and were intended to injure and lower the plaintiff’s reputation among right-thinking members of the society,” said the Magistrate.
Accordingly, the magistrate ordered Mr Nyaega to pay the MP Sh2 million in general damages and a further Sh500,000 in "exemplary, punitive and aggravated damages".
Granting Ms Mayaka's prayer for an order restraining Mr Nyaega from making further defamatory statements, the magistrate ordered the defendant or anyone acting on his behalf to remove all defamatory content from social media.
The court also ordered him to issue an apology on the same platforms where the defamatory statements were published.
The magistrate emphasised that "words are defamatory if they involve a reflection upon the personal character or official reputation of the plaintiff".
The common law of defamation protects every person from damage to his or her reputation by false and derogatory statements about his or her person.
Article 33 (1) (a) of the Constitution of Kenya gives every person the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas.
However, Clause 3 of the same Article states that in exercising the right to freedom of expression, everyone must respect the rights and reputations of others.
The Magistrate emphasised that “reputation is an integral and important part of the dignity of the individual and once besmirched by an unfounded allegation one’s reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation”.
