For Release Date:
15 November 2022
ISLA admitted as amicus curiae in the High Court at Nairobi in Wambui Mwangi v Tony Mochama & Shailja Patel Civil Appeal No 507 of 2019
ISLA has been admitted in an appeal from a defamation case against women who speak after sexual violence in the High Court at Nairobi in Wambui Mwangi v Tony Mochama (High Court Civil Appeal No 507 of 2019). This appeal seeks to set aside the whole judgment of the Magistrate court made on 5 August 2019 where the court restrained the appellant from saying, writing, and causing to be published any defamatory statements against the respondent. Further, it made an order for the appellant to issue a written apology to the respondent and awarded the respondent general, punitive, aggravated, and exemplary damages. In its application, ISLA had pointed out to the court the need for additional information on the developments of defamation law in the context of the protection of women from violence, and the applicability of the defenses of truth and public interest in defamation cases brought against victims of sexual violence when they speak up on their experiences of abuse.
In response to the application, the 1st respondent had argued that:
- ISLA does not have the standing to institute the application owing to the fact that the dispute is a mere tort claim between the parties and not a constitutional matter seeking the enforcement of the Bill of Rights;
- ISLA has not demonstrated it is a neutral and impartial party, its joinder seeks to support the appellant and provide information to help her expand her defence;
- ISLA had not demonstrated its expertise on defamation suits; and
- ISLA had delayed in filing its application with an intention of delaying the court proceedings.
In a ruling handed down on 11th November 2022, the Court found that ISLA was a neutral party who had previously participated in human rights litigation and had met the requirements for admission as a friend of the court. The court reiterated the role of an amicus curiae and highlighting its own previous jurisprudence, stated that “a friend of the court highlights the areas of law neglected by the parties to the case but which may aid the court in reaching a sound decision.”
ISLA’s intervention in the case will provide information to the court that will contextualize defamation suits arising from sexual violence; ISLA, drawing on its expertise, will provide to the court information on the interplay of three fundamental rights; right to dignity, freedom of expression and freedom from violence, that are central to the determination of defamation suits when gender-based violence is alleged. ISLA will also provide comparative law to demonstrate the evolution of the defence of truth in defamation cases in line with emerging international legal standards and principles. Lastly, ISLA will provide context that has necessitated the legal reforms on defamation law.
The court has set out the timelines for filing of the brief and directed that ISLA put in its submissions within 30 days of the parties filing their written arguments. The appeal will then be mentioned on 2nd March 2023 for taking of further directions on hearing.
The advocate representing ISLA is Nyokabi Njogu who works as Legal Counsel at the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) and who is a part of ISLA’s Feminist Litigation Network as a Core Network Partner.
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For more information:
Advocate for the Amicus Curiae
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
Karen C, Kuwinda Lane, Off Langata Road
Po Box 112 – 00202 KNH
+254 790 111578
The ISLA is a Pan-African and feminist led organization that seeks to use the rule of law and African domestic and regional courts to advance women’s human rights and sexual rights, through strategic litigation. It is the first Africa-based and run strategic litigation initiative with a regional focus and expertise on women’s human rights and sexual rights. The key priority areas of our work are: Litigation for social change, building capacity to litigate strategically, building partnerships for social change and producing knowledge to support strategic litigation.
The Kenya Legal and Ethical Issues Network on HIV & AIDs (KELIN) is a human rights nongovernmental organization working to protect and promote health-related human rights in Kenya. KELIN does this by providing legal services and support, training professionals and communities on health and human rights, engaging in advocacy campaigns that promote awareness of human rights issues, conducting research, and influencing policy that promotes evidence-based change. KELIN plays a pivotal role in advocating for an enabling environment for vulnerable and marginalized populations to realize the highest attainable standard of health. KELIN operates through its five thematic areas which are; Sexual and Reproductive Health Rights, Women Land and Property Rights, HIV and TB, Health Governance and Strategic Litigation.