Lawyer awarded Sh1.5m for defamatory WhatsApp message from client’s rival

The dispute began in April 2024 when Ann Bwari, a property owner in Kaputei, Kajiado County, instructed Mr Moindi to represent her in a land dispute with her neighbour, Larry Sankeet.

Mr Moindi, trading as Moindi & Co. Advocates, filed proceedings against Mr Sankeet in the Environment and Land Court at Kajiado.

On June 6, 2024, Mr Moindi sent the pleadings to Mr Sankeet through WhatsApp, notifying him of the proceedings.

Mr Sankeet responded by sending a WhatsApp communication to the law firm’s office mobile telephone. The message was received by Bridget Tuwei, an employee who handled the phone.

Mr Moindi subsequently sued, arguing that the communication attacked his integrity, qualifications, competence and fitness to practise as an advocate.

He sought Sh5 million in general damages and a further Sh2 million in punitive, exemplary and aggravated damages, making a total claim of Sh7 million.

Mr Moindi told the court that the statements were false and malicious and had damaged his professional reputation.

Ms Tuwei’s evidence was important because the communication had to reach someone other than Mr Moindi to establish publication, an essential element of a defamation claim.

“Publication is an essential ingredient of the tort of defamation. The defamatory words must have been communicated to at least one person other than the person allegedly defamed,” the Magistrate said.

The magistrate added: “The evidence of PW2 (Tuwei) therefore establishes that the communication was received by a person other than the Plaintiff.”

Mr Sankeet did not enter appearance or file a defence. Judgment was entered against him, and the matter proceeded to formal proof. The court, however, said the plaintiff still had to prove his case despite the absence of a defence.

Mr Moindi testified that he had been admitted to the Roll of Advocates in 1996 and produced the WhatsApp communication and electronic evidence in support of his case.

The court found that the statements complained of were defamatory and that Mr Moindi had proved falsity and malice on a balance of probabilities.

It said the communication was sent immediately after Mr Sankeet had been served with pleadings in proceedings in which Mr Moindi was acting for his client.

“Rather than addressing the allegations through the judicial process or confining his response to the dispute, the defendant attacked the plaintiff personally and professionally,” the magistrate said.

The court also considered the extent of the publication when assessing damages.

The evidence showed that the communication was sent to the law firm’s office telephone and received by Ms Tuwei. There was no evidence that it was published in a newspaper, broadcast on radio or television, posted on a public website or disseminated through a public social-media platform.

There was also no evidence of widespread republication, loss of clients, loss of professional briefs, loss of income or other specific financial loss linked to the communication.

The court said the limited publication had to be weighed against the seriousness of the attack and Mr Moindi’s professional standing.

It awarded him Sh1.2 million in general damages and Sh300,000 in aggravated damages, bringing the total to Sh1.5 million. It declined to award separate exemplary or punitive damages.

The court also ordered Mr Sankeet to issue Mr Moindi with a signed and unqualified apology and retraction within 14 days of being served with the judgment.

The apology must identify the WhatsApp communication, acknowledge that the statements were defamatory and withdraw them in full. A copy must also be sent to Mr Moindi through WhatsApp.

The magistrate declined Mr Moindi’s request for a broad permanent injunction restraining Mr Sankeet from publishing any defamatory matter concerning him.

The court said such an order could extend beyond the specific communication and potentially restrain lawful communication or comment.