You Can Sue a Foreign Defamer From Nairobi

A Nairobi businesswoman wakes up to find a video circulating on YouTube that accuses her of fraud. The man who made it lives in London, has never been to Kenya and posted it from his flat in Croydon. Within days, the video has been shared thousands of times in Kenyan WhatsApp groups, her bank has asked questions and two clients have withdrawn. She wants to sue, but the defamer is abroad, and she assumes that the case must be brought in England, at English prices.

That assumption is often wrong. Kenyan law can reach a defamer who publishes from abroad to readers in Kenya. Getting the case started, however, requires careful attention to procedure, and winning it is only half the battle.

Where online defamation takes place

The tort of defamation is committed where the defamatory material is published, and publication occurs when the material is read, heard or seen by someone other than the person defamed. On the internet, that principle has a far-reaching consequence. In Dow Jones & Co Inc v Gutnick, an article was uploaded in New Jersey to a subscription website and downloaded by readers in Victoria. The High Court of Australia held that defamation is located where the damage to reputation occurs, which is ordinarily where the material is downloaded and read, and that the Victorian courts could therefore hear the claim.¹ The English Court of Appeal adopted the same approach in Lewis v King, and declined to adopt a narrower test that would ask whether the publisher had specifically targeted the forum.²

Kenyan courts have had no difficulty in treating material posted on social media as published for the purposes of the tort, and have awarded damages for defamatory posts on Facebook.³ On the Gutnick principle, a video uploaded in London and watched in Nairobi is published in Kenya, and the tort is committed in Kenya.

Bringing the defamer before a Kenyan court

Because the defamer is outside Kenya, the claimant cannot simply serve the summons as she would on a local defendant. She must first obtain the court's leave to serve outside Kenya, and one of the recognised grounds is that the suit is founded on a tort committed in Kenya.⁴ The application must be supported by evidence that she has a good cause of action, showing where the defendant is or may be found, and demonstrating that the case is a proper one for service out of Kenya.⁵ The Court of Appeal has held that the High Court assumes jurisdiction over a foreign defendant only by granting such leave, and only once the summons has been served in accordance with it.⁶

The importance of that step is illustrated by Mwilu v British Broadcasting Corporation. The plaintiff sued the BBC over articles published on its website. The summons was served on a Nairobi law firm that had corresponded on the BBC's behalf before the suit was filed, but the firm returned it, saying it had no instructions to accept service. The plaintiff then purported to serve the BBC by email, without having obtained leave to serve outside Kenya, and obtained judgment in default of appearance.⁷ The High Court set the judgment aside. It held that, no leave having been sought, the court had not assumed jurisdiction over the foreign defendant, and that the email service was in any event unproven because no delivery receipt had been filed as the rules require.⁸ The BBC was then permitted to raise a preliminary objection to the court's jurisdiction.⁹

The lesson is simple and unforgiving. Pre-suit correspondence with a foreign defendant's local lawyers is not a substitute for leave, and electronic service is not a substitute for compliance with the rules on service abroad.

The question of substantial publication

Other common law jurisdictions that accepted the Gutnick principle soon found that it needed a counterweight. Without one, a publisher could be sued wherever a handful of people happened to read its material. The English Court of Appeal responded in Jameel v Dow Jones & Co Inc by holding that a claim for internet defamation should be struck out as an abuse of process where publication within the jurisdiction was so minimal that no real and substantial tort had been committed there.¹⁰ Parliament later went further, providing that an English court has no jurisdiction over a defamation claim against a person not domiciled in the United Kingdom unless England and Wales is clearly the most appropriate place to bring it.¹¹ The Supreme Court of Canada, in Haaretz.com v Goldhar, accepted that publication in Ontario gave the Ontario courts presumptive jurisdiction over an Israeli newspaper, but stayed the action because Israel was clearly the more appropriate forum.¹²

Kenya has no equivalent statutory filter, and no Kenyan appellate court has yet applied a Jameel threshold to cross-border online publication. The requirement in Order 5 rule 25 that the case be a proper one for service out of Kenya is, however, capable of doing similar work. A claimant should therefore expect to show not merely that the material was accessible in Kenya, but that it was actually read by people in Kenya who know her, and that her reputation in Kenya has suffered real harm.

Why the claimant's home matters

Two broader approaches may influence how Kenyan courts treat these claims. The Court of Justice of the European Union, in eDate Advertising GmbH v X, held that a person whose personality rights are infringed online may sue for the whole of the damage in the country where he or she has the centre of his or her interests.¹³ That approach suits a Kenyan claimant whose professional and personal life is centred in Kenya, because it explains why Kenya, rather than every country where the material can be viewed, is the natural forum.

The United States takes a narrower view. In Calder v Jones, the Supreme Court allowed a California actress to sue Florida-based journalists in California because their article was expressly aimed at California and caused harm there.¹⁴ The Court later emphasised that the inquiry focuses on the defendant's own contacts with the forum rather than on the plaintiff's connection with it,¹⁵ and a federal appeals court held that the mere accessibility of newspaper websites in a state did not mean their authors had aimed their content there.¹⁶ A defamer abroad will naturally urge a Kenyan court to follow the American approach. The claimant will point to Gutnick and eDate. Kenyan courts have not yet chosen between them.

The time limit

Speed matters. An action for libel or slander must be brought within twelve months of the date on which the cause of action accrued.¹⁷ At common law each publication gives rise to a separate cause of action, and the English Court of Appeal applied that rule to online archives in Loutchansky v Times Newspapers Ltd, holding that each time an article in an online archive is accessed, it is published afresh.¹⁸ England later replaced that rule with a statutory single publication rule,¹⁹ but Kenya has not. A claimant who has missed the twelve-month period for the original posting may therefore still have a claim for later publications within the period, provided they can be proved.

Winning is not the same as collecting

A Kenyan judgment against a defamer who has no assets in Kenya must be enforced where the defamer's assets are. If the defamer lives in the United States, federal law prevents American courts from recognising a foreign defamation judgment unless the foreign law provided at least as much protection for speech as the First Amendment, or the defendant would have been liable under American law in any event.²⁰ Within Kenya's own framework, the statutory scheme for registering and enforcing foreign judgments operates only between Kenya and designated reciprocating countries,²¹ and a Kenyan judgment will be enforced abroad only according to the rules of the country where enforcement is sought.

That does not make the Kenyan action pointless. A judgment declaring the material false and defamatory has real value for a claimant whose reputation lives in Kenya. An injunction may persuade the platforms hosting the material to remove it, and a defendant who travels to Kenya, has family or business here, or holds assets in the country will find the judgment very much alive.

What this means for claimants

A Kenyan who has been defamed from abroad can, in principle, bring the claim at home. To do so successfully, the claimant should act within twelve months, gather evidence of the material being read in Kenya by people who know her, obtain leave to serve the defendant outside Kenya before attempting service, and comply strictly with the rules on service. Before filing, she should also consider where any judgment will have to be enforced and whether, in practice, the most effective remedy is a declaration and injunction that the platforms will respect.

The defamer may be abroad. The damage is in Kenya, and that is where the law says the wrong was done.

Benson Odiwuor is a Nairobi-based dispute resolution lawyer and researcher in internet jurisdiction, who handles dispute resolution in cross-border digital, data protection and online reputation matters. He is also the editor of The BOLD, a legal newsletter focusing on dispute strategies and legal developments in the regulated industries of Kenya. Subscribe to The BOLD here.

For inquiries, contact the author at  info@bensonodiwuor.com.