² Act 10 of 1970: date of assent, June 16th, 1970; date of commencement, July 1st, 1970.

³ No. 57 of 1961.

⁴ Judicature Act, 1967: Act 11 of 1967, s. 3.

⁵ Judicature Act, 1967: Act 16 of 1967, s. 3.

⁶ Presumably there will be in the future when the effects of the Kenya Defamation Act, 1970, start to take effect. But in addition see W. S. Holdsworth, “A chapter of accidents in the law of libel”, (57) L.Q.R. 74, where it is pointed out that until 1910 it was necessary in England to prove that the defendant intended to defame the plaintiff: Hulton v. Jones, [1910] A.C. 20. It would be possible to argue therefore that Uganda and Kenya are not bound by this development. Fortunately the factual situations of Hulton v. Jones (supra); Cassidy v. Daily Mirror, [1929] 2 K.B. 331; Newstead v. London Express Newspaper, Ltd., [1939] 3 All E.R. 263, have not presented themselves to the East African courts. On the other hand, Hulton v.Jones has been accepted in a number of Ugandan and Kenyan decisions.

⁷ 6 & 7 Vict., c. 96.

⁸ 8 & 9 Vict., c. 75.

⁹ 51 & 52 Vict., c. 64.

¹⁰ 54 & 55 Vict., c. 5.

¹¹ Cornelius v. Martinaglia (1934) 1 T.L.R. (R.) 492.

^{page 67 note 1} Gatley on Libel and Slander, 6th ed., para. 47.

^{page 67 note 2} As to the effects of alleging a person is a Communist in the United States, see Faulk v. Aware Inc. 19 A.D. 2d 464; 244 N.Y.S. 2d. 259, where the jury awarded damages of $3 million. This was reduced on appeal to $19,000. See Associated Leisure, Ltd. v. Associated Newspapers, Ltd., [1970] 3 W.L.R. 101, where it was held that to allege that a firm was controlled by the Mafia was defamatory in its natural and ordinary meaning.

^{page 67 note 3} Civil Suit 643 of 1960, High Court of Uganda (unreported).

^{page 67 note 4} Approximately $7,000 or £2,750.

^{page 67 note 5} [1967] E.A. 547 (C.A.) (Kenya).

^{page 68 note 1} See Odongkara v. Astles, [1970] E.A. 374 (Uganda) below, for the use of the innuendo when the use of the words are clear and plain.

^{page 68 note 2} Independence Constitution, 1962; “Revolutionary Constitution”, 1966; Republican Constitution, 1967. Attempted assassination of President Obote, 1969; Coup d''État by General Amin, 1971; numerous modifications since then.

^{page 68 note 3} [1964] E.A. 568 (Uganda).

^{page 68 note 4} Now abolished.

^{page 68 note 5} Civil Suit 315 of 1965, High Court of Uganda (unreported).

^{page 69 note 1} Civil Suit 393 of 1964—(High Court of Uganda) unreported.

^{page 69 note 2} The court awarded shs. 20,000. The importance of the defence of fair comment particularly in relation to political and public people will be dealt with below.

^{page 69 note 3} See supra, p. 68, n. 5.

^{page 69 note 4} Sheridan, J., later Chief Justice, an expatriate judge although he had been born in East Africa.

^{page 69 note 5} [1930] 1 K.B. 467 at p. 479.

^{page 69 note 6} Prosser, Torts, 3rd ed., p. 790.

^{page 70 note 1} The estimated population of Buganda is 2 million out of a Ugandan population of 10 million.

^{page 70 note 2} This view was not borne out when discussing the matter with colleagues.

^{page 70 note 3} [1970] E.A. 374 (Uganda).

^{page 70 note 4} Gatley, 6th ed., p. 89, n. 2, citing Stoner v. Audley (1590) Gro. Eliz. 250; Mayne v. Digle (1762) Freeman K.B. 45; Harrison v. Stratton (1802) 4 Esp. per Lord Ellenborough, C.J., at p. 219; McKee v. Ingalls (1842) 5 Illinois R. 30; Fanning v. Chance (1891) 33 Amer. St. 879; Stone v. World Newspaper (1918) 44 Ontario L.R. 33.

^{page 70 note 5} Section 25 reads: “Any person who, …(b) compasses, imagines, invents or intends any act, matter or theory and expresses, utters or declares such compassing, imagining, inventing, devising or intending by any overt act in order by force of arms to overturn the Government as by law established, commits the offence of treason …”

^{page 70 note 6} A number of illustrations are dealt with under more specialised headings, e.g. Privilege, Fair Comment, Damages.

^{page 71 note 1} In the Tanganyika case of Cornelius v. Martinaglia (1934) 1 T.L.T. (R) 492 the 1891 Act was held to be an act of general application in that country. There are no reasons why it should not be so in Uganda and Kenya.

^{page 71 note 2} This remark will be justified when we discuss “Defences”.

^{page 71 note 3} There was a sharp difference of opinion. Those in favour of assimilation called upon the opinions of Holdsworth, Winfield and Goodhart and the legislative innovations of Queensland and New South Wales to show that there had been no increase in the number of slander actions once all allegations were actionable per se. Scotland has never had such a distinction. These arguments however did not find favour with the majority.

^{page 71 note 4} (1953) 20 E.A.C.A. 53 (Kenya).

^{page 71 note 5} [1940] 2 K.B. 507.

^{page 72 note 1} Civ. App. 18-D-68 Tanzania (unreported).

^{page 72 note 2} S. 8.

^{page 72 note 3} Section 1.

^{page 72 note 4} Uganda Argus 14/4/1972.

^{page 72 note 5} Russell, Ag. J., an expatriate.

^{page 72 note 6} Report of the Committee on the Law of Defamation (Cmd. 7536, para. 42, p. 13). “A defamatory statement transmitted over the radio in a broadcast reaching as it may an audience of many millions is calculated to cause as much, if not more, damage than a report written in a newspaper, however large its circulation.”

^{page 73 note 1} [1957] E.A. 115 (Uganda).

^{page 73 note 2} There has been a growing tendency, since 1970, to include a photograph.

^{page 73 note 3} The language in the advertisements varies greatly. There are some that certainly seem to imply dishonesty and which might provide grounds for an action.

^{page 73 note 4} [1968] E.A. 576 (Uganda).

^{page 73 note 5} [1970] E.A. 1. (Tanzania).

^{page 73 note 6} The defences will be dealt with later.

^{page 74 note 1} [1936] 2 All E.R. 1237.

^{page 74 note 2} [1970] E.A. 678 (Kenya).

^{page 74 note 3} They were reduced by two-thirds.

^{page 74 note 4} Civ. App. 41-M-70, Tanzania (unreported).

^{page 75 note 1} El-Kindy, Ag. J.

^{page 75 note 2} Winfield & Jolowicz on Tort (9th ed.) accepts the possibility of two grounds.

^{page 75 note 3} Quoting Gray v. Jones (1939) 55 T.L.R. 436.

^{page 75 note 4} Tozer v. Mashford (1851) 6 Ex. 539; 155 E.R. 657.

^{page 75 note 5} In another unreported Tanzanian decision, Hamisi v. Boniface s/o Paul, Civ. App. 69-D-66 the plaintiff sued the defendant for calling him a thief when the plaintiff had been seen leaving a house at night and on being asked what he was doing, had run away. The court dismissed the plaintiff's claim. HAMLYN, J., said: “The term ‘thief’ was probably used in a colloquial sense as meaning a person who was intent on stealing rather than one who was actually carrying away the goods of another / in the absence of any explanation by the plaintiff as to what he was in fact doing at that time the Court seems to have been justified in reaching the conclusion that it did—that the appellant was not entitled to compensation for defamation.”

^{page 75 note 6} [1971] E.A. 87 (Uganda).

^{page 75 note 7} Relying on Gatley (6th ed.) para. 238, quoting Valentine v. Gonzalez (1920), 179 New York Supp. 711; Hay v. Smither, (1911) Times, February 17th–19th.

^{page 76 note 1} Lyons v. Prescott-Decie (1925), Times, July 16th.

^{page 76 note 2} Lyons v. Prescott-Decie (supra). McWhirter v. Manning (1954), Times, October 30th, cf. Henry v. Pittsburgh (1891), 139 Penn. St. R. 289 where the mere answering of questions of a reporter was held insufficient to fix a person with responsibility for the publication of the answers.

^{page 76 note 3} (1907) 1 Z.L.R. 243.

^{page 76 note 4} [1944] A.C. 116.

^{page 76 note 5} Civil Suit No. 149 of 1965, Uganda (unreported).

^{page 76 note 6} Civil Suit No. 135 of 1965, Uganda (unreported).

^{page 76 note 7} Contrary to Exchange Control Regulations.

^{page 76 note 8} [1971] E.A. 450. (Uganda).

^{page 77 note 1} [1969] E.A. 92. (Uganda).

^{page 77 note 2} The publication of the parliamentary debate was not used as the basis of the action, only the publication of the press conference.

^{page 77 note 3} 15 & 16 Geo. 6 & 1 Eliz. 2, c. 66.

^{page 78 note 1} Helsham v. Blackwood (1851), 11 C.B. III.

^{page 78 note 2} [1965] E.A. 218. (Kenya).

^{page 78 note 3} [1964] E.A. 336. (Kenya).

^{page 78 note 4} [1950] 2 All E.R. 458.

^{page 79 note 1} [1964] Crim. L.R. 717.

^{page 79 note 2} [1967] 1 Q.B. 333.

^{page 79 note 3} [1943] K.B. 587.

^{page 79 note 4} C. 64, s. 13.

^{page 79 note 5} Street on Torts (5th ed.) considers s. 13 to ave adverse effects whereby it further safeguards and allows newspapers to rake up a man's past and ruin him deliberately in the process without risk of incurring tortious liability. Weir, A Casebook on Tort (2nd ed.) also is critical of the effects of s. 13 in as much as “a person erroneously convicted cannot establish his innocence in a defamation case”.

On considering the balance of interests, it is submitted that the section places protection on the right shoulders. It is to be hoped that there will be few of those examples envisaged by Street. It seems unacceptable that, should there have been an erroneous conviction as suggested by Weir, the wronged person should be able to acquit himself at the expense of an innocent publisher in a civil action. It was equally possible before the Act for a “correctly convicted person” to succeed for defamation.

^{page 79 note 6} Section 8(2) includes wireless broadcasts within Kenya.

^{page 79 note 7} Newspapers in the three countries frequently report judicial cases from a neighbouring state. There is also a free flow of newspapers between the three countries. Uganda, for instance, has no local Sunday paper, therefore the Sunday Nation of Kenya is sold in large numbers.

^{page 80 note 1} Although the court of first instance in McCarey v. Associated Newspapers, Ltd., [1964] 1 W.L.R. 855 said that the privilege was absolute.

^{page 80 note 2} Civ. App. 18-Dodoma-1971, Tanzania.

^{page 80 note 3} (1954) K.L.R. 68.

^{page 81 note 1} [1963] E.A. 603 (Tanzania).

^{page 81 note 2} (1875) L.R. 7 H.L. 744.

^{page 81 note 3} [1892] 1 Q.B. 431.

^{page 81 note 4} Command Paper No. 218 (1957).

^{page 81 note 5} The defence of qualified privilege and malice are dealt with below.

^{page 81 note 6} Cap. 249. Kenya, Cap. 6. Tanzania, Cap. 359.

^{page 82 note 1} In East Africa there is a fused profession, that of advocates.

^{page 82 note 2} [1928] 2 K.B. 520.

^{page 82 note 3} [1930] A.C. 558.

^{page 82 note 4} See Winfield & Jolowicz, (9th ed.), p. 286–7. Street on Torts, (5th ed.), p. 309; Salmond. (15th ed.), p. 224.

^{page 82 note 5} In Mayers v. Akira Ranch, Ltd. Civil Appeal 40 of 1971, the East African Court of Appeal (SPRY, V.-P.) said that it would not be bound by English common law prior to the reception date of any of the three countries if it were shown that the decision itself had been later over-ruled in England. “… it would be quite absurd if we were to be bound by decisions of English courts which we think wrong and which have, in England, been held wrong … ”.

^{page 83 note 1} [1948] 1 All E.R. 450.

^{page 83 note 2} [1887] 3 T.L.R. 500.

^{page 83 note 3} This fear is borne out by the large number of defamation actions involving politicians, especially in Uganda. See also the Kenya “Cloves Allegations”, as reported in the East African Standard and Nation during October, 1972.

^{page 83 note 4} The Court of Appeal in Plummer v. Charman, [1962] 1 W.L.R. 1969 interpreted s. 10 and said that only in exceptional circumstances where there was a common duty or interest to make the communication to the electors, would there be a basis for the defence of qualified privilege. If this approach is liberally interpreted it could have the effect of substantially resurrecting the defence.

^{page 83 note 5} (1900) 1 Z.L.R. 127.

^{page 84 note 1} (1946–47) 11 K.L.R. 1.

^{page 84 note 2} [1961] E.A. 55 (Tanzania).

^{page 84 note 3} Civil Case 15-D-69 (Tanzania).

^{page 85 note 1} In the unreported case of Athman Lusaju v. Sadiki Athumani, Civ. App. 134-D-66 (Tanzania) a letter sent to the plaintiff complaining of his mismanagement of the affairs of a mosque was copied to the local sheikh, local TANU, E.A. Muslim Welfare Society and the Village Development Committee. It was held that the publication was privileged and had been “published to persons and bodies having an interest in either the mosques or the preservation of peace”.

^{page 85 note 2} See pp. 68, et seq.

^{page 86 note 1} Newbold, P., dissenting.

^{page 86 note 2} In Mwanje v. Sheikh Kayiwa & Others, Civ. Suit 492 of 1970 (Uganda) it was held that where a group of people frame a letter that one of them later hands to a third person, then all of them are responsible for publication. In this case it was also decided that qualified privilege is lost where the letter, in an open form, folded, is handed to a secretary/stenographer of the person who is in a position to receive it.

^{page 86 note 3} [1972] E.A. 80 (Uganda).

^{page 87 note 1} In Shah v. New Africa Press, Ltd., [1970] E.A. 352 the same set of plaintiffs sued for the publication of a story covering the same subject matter. The Uganda High Court allowed the action and awarded a total of shs. 180,000. There seems to have been no defence put forward (other than to deny that it was defamatory) and no defence witnesses called.

^{page 87 note 2} 3 U.L.R. 124.

^{page 87 note 3} Section 15.

^{page 87 note 4} Lord Porter in Kemsley v. Foot, [1952] A.C. 345 explained the section in this way: “Twenty facts might be given in the particulars and only one justified yet if that one fact were sufficient to support the comment so as to make it fair, failure to prove the other nineteen would not of necessity defeat the defendant's claim.”

^{page 87 note 5} [1968] E.A. 501 (Uganda).

^{page 88 note 1} See supra, p. 87, n. 4.

^{page 88 note 2} [1965] E.A. 218 (Kenya).

^{page 88 note 3} Section 2.

^{page 88 note 4} For procedural reasons the defence is rarely used, there being more convenient ways to achieve the same result: see Winfield & Jolowicz, pp. 304–305.

^{page 89 note 1} For a more detailed explanation of the section in the UK, which would presumably be followed in Kenya see Winfield & Jolowicz, pp. 265–267; Salmond, pp. 197–199; Street, pp. 294–299. See also supra, p. 66, n. 6.

^{page 89 note 2} Civil Suit 372 of 1962 (Uganda).

^{page 89 note 3} [1965] E.A. 82. A newspaper report of a car accident involving the plaintiff alleging that a bottle of brandy and obscene photographs had been found in the car. Plaintiff succeeded on the innuendo of drunkenness.

^{page 90 note 1} Rookes v. Barnard, [1946] A.C. 1129.

^{page 90 note 2} See Hodgin and Veitch, “Punitive damages re-assessed” (1972) I.C.L.Q. 119 for a survey of Commonwealth decisions.

^{page 90 note 3} See n. 2 supra.

^{page 90 note 4} Obongo v. Kisumu Council, [1971] E.A. 91 (Kenya).

^{page 90 note 5} [1961] 2 Q.B. 162, affirmed [1964] A.C. 234.

^{page 90 note 6} Lewis v. The Daily Telegraph, [1964] A.C. 234.

^{page 90 note 7} Civ. Suit 429 of 1969—reversed on other grounds, [1971] E.A. 87 (Uganda).

^{page 90 note 7} Although Kenya now has the advantage of s. 7 and s. 13 of the 1970 Act viz. Qualified Privilege of newspapers and the defence of Unintentional Defamation.

^{page 90 note 8} (1950) L.Q.R. 348.

^{page 91 note 1} One wonders after this statement whether the Attorney-General realised that he was introducing a Bill that was to afford major defences to newspapers.

^{page 91 note 2} 376 U.S. 254. For further attempts to broaden the rule see: Garrison v. Louisiana, 379 U.S. 64; Gilberg v. Goffi, 251 N.Y.S. 2d 823; Pearson v. Fairbanks Publishing Co., 33 U.S.L. Week 2307; 77 Yale L.J. 366; 75 Yale L J. 642.

^{page 91 note 3} The action in tort is a deterrent to the printed word. Before that stage is reached the whole question of the freedom of the press arises. In Uganda, under Obote, the newspapers did little more than to advertise the government policies. There was a “miraculous” turn-about after the coup in January, 1971. Under President Amin there is no criticism whatso-ever. The censorship is implied rather than openly imposed. In Tanzania the editor of the major daily newspaper is appointed by the government. The Kenya press seems to be free from such pressures.

^{page 91 note 4} McCarey v. Associated Newspaper, [1965] 2 Q.B. 86.

^{page 91 note 5} Groom v. Crocker, [1939] 1 K.B. 194 at 231. See: Samuels, “Problems of assessing damages for defamation”, 79 L.Q.R. 63.

^{page 92 note 1} Rampuria v. Bhanjy, H.C. Civ. Suit 25 of 1964, Uganda (unreported). The same court and the same year as Farmer's case.

^{page 92 note 2} Together with the plaintiff's costs.