Awili v Attorney General [1981] KECA 17 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Government can be liable for defamatory words spoken by its officers at work, even if unauthorized.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in holding that the Government, as master, could be liable for its servant's defamatory utterances only if the words were uttered with the principal's authority and consent
- 2.Whether the words complained of were actionable without proof of special damage
- 3.Whether there was evidence that Chief Aloo Obare was acting in the course of and within the scope of his employment when he published the words
Key legal issues
#Whether the plaintiff must prove the principal's authority and consent before a master is vicariously liable for a servant's slander
No - the court found the trial judge's requirement erroneous; vicarious liability attaches where the servant acted in the course of employment, even if improperly.
The court found the trial judge's requirement of proof of the principal's authority and consent to be unsupported by any authority. Relying on Muwonge v Attorney-General of Uganda and Canadian Pacific Railway v Lockhart, it held that a master is liable for acts so connected with authorised acts as to be improper modes of doing them. There was evidence that the Chief spoke the words at a public baraza, ostensibly in the course of his duties as a government servant, which was prima facie sufficient to establish vicarious liability, rebuttable at trial.
Whether the slanderous words were actionable without proof of special damage
Yes - the words imputed a crime punishable by imprisonment, and were also spoken of the appellant in the way of his office as Honorary Secretary.
The High Court had held submission (b) failed because the words charged the appellant with a crime punishable by imprisonment; the Court of Appeal agreed, citing Gray v Jones. Further, the plaint alleged, without denial by the defence, that the words were spoken of the appellant in the way of his office as Honorary Secretary of Harambee Dip Project, and under section 3 of the Defamation Act (Cap 36) special damage need not be alleged or proved in such a case.
Legal principles established
#- A master is vicariously liable for a servant's tort, including slander, where the act is done in the course of and within the scope of the servant's employment, even if done contrary to orders, wantonly or for his own benefit; the plaintiff need not prove the principal's authority and consent.
- Slander imputing a crime punishable by imprisonment, or spoken of the plaintiff in the way of his office, is actionable without proof of special damage.
Court orders
#- 1.Appeal allowed with costs here and in the High Court proceedings at Kisumu of the hearing held on March 3, 1981
- 2.Judgment and decree appealed from set aside
- 3.Suit remitted to the High Court at Nairobi before another judge, to be continued from the stage at which it terminated for completion of the hearing and determination of the remaining issues raised by the pleadings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- Civil Case No. 72 of 1977
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court decision dismissing the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We allow this appeal, with costs here and in the High Court proceedings at Kisumu of the hearing held on March 3, 1981, set aside the judgment and decree appealed from, and we direct that the suit be remitted to the High Court, at Nairobi, before another judge, to be continued from the stage at which it terminated
An act may be done in the course of a servant’s employment so as to make his master liable even though it is done contrary to the orders of the master; and even if the servant is acting deliberately, wantonly, negligently or criminally, or for his own benefit, nevertheless if what he did is merely a manner of carrying out what he was employed to carry out then his master is liable.
a master is responsible not only for what he authorizes a servant to do, but also for the way in which he does it
the words complained of charged the appellant with the commission of a crime punishable by imprisonment and were accordingly actionable without proof of special damage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awili v Attorney General [1981] KECA 17 (KLR)", Case Analysis (1981). Court of Appeal, Nairobi (from High Court Civil Case No. 72 of 1977, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/17/eng@1981-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.