Donald Kipkorir has weighed into the escalating legal dispute between Kimilili MP Didmus Barasa and Consumer Federation of Kenya (COFEK) Secretary-General Stephen Mutoro, arguing that public officials face a higher threshold when pursuing defamation claims.
Barasa's lawyers on September 21 demanded KSh100 million from Mutoro over social-media publications concerning the lawmaker's academic qualifications.
The legal team, led by lawyer Danstan Omari, also demanded that Mutoro remove and retract the publications within two hours, warning that court proceedings would follow if he failed to comply.
The demand came amid an ongoing High Court dispute in which COFEK has raised questions concerning Barasa's academic history and his doctoral qualification from Murang'a University of Technology. Barasa has disputed the claims and maintained that his academic qualifications were legitimately obtained.
In a statement weighing on the development, lawyer Donald Kipkorir argued that the nature of Barasa's position as an elected public official would be significant if a defamation case proceeds.
Kipkorir cited jurisprudence from jurisdictions including the United States, England and South Africa, arguing that public officials who sue over statements concerning their public conduct have historically faced demanding evidentiary requirements.
“Modern jurisprudence has time and again held public officers to a higher standard when they sue for defamation,” Kipkorir said, adding that public office “demands scrutiny.”
He argued that courts dealing with claims involving presidents, politicians and other state officials have required plaintiffs to meet a particularly demanding evidentiary threshold.
Kipkorir further contended that the allegations raised by Mutoro fell within protections surrounding freedom of expression and matters of public interest.
“The allegations by Stephen Mutoro satisfies all defenses to a defamation suit from Constitutional protection to public interest,” he said.
His comments come as the controversy surrounding Barasa's academic qualifications continues to attract legal and public attention. Jomo Kenyatta University of Agriculture and Technology (JKUAT) reportedly told COFEK that Barasa was not its student and that a Bachelor of Electrical and Electronic Engineering certificate attributed to the university was not genuine. Barasa, however, has denied attending JKUAT or pursuing an engineering programme there.
Kenyan courts recognise both freedom of expression and protection of reputation under Article 33 of the Constitution.
The High Court has previously noted that defamation cases require a balance between the public interest in information about public affairs and an individual's right to dignity and reputation.
Barasa's demand against Mutoro is separate from the underlying proceedings concerning his academic qualifications.
Whether Mutoro's publications are ultimately protected by constitutional, public-interest or other defences would depend on the evidence and legal arguments presented if formal defamation proceedings are filed.