Wife barred from speaking ill of her estranged spouse

The Court of Appeal has issued orders barring a woman from ‘assassinating’ her estranged husband’s character.

The ruling emanates from a bitter dispute playing out in Kenyan courts between two South African citizens who lived together in Nairobi until 2015 when their marriage collapsed.

The landmark decision, which arose from what the judges described as a rather unusual case in which the husband seeks to use the coercive power of an injunction to stop his wife from defaming him, now opens the door for spouses to pursue each other for disparaging information passed on to third parties.

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Albertus Lotter Sadie told the court that he was fired from his job as an accountant for Ecobank Transnational Inc. (Ecobank) after his estranged wife, Elsabel Vilhjoen Sadie, sent an email to two senior managers at the bank portraying him as not fit for the job.

“In July 2015 the wife addressed an email to two senior managers of the husband’s employer portraying the husband as ‘a thief, dishonest man, untrustworthy, violent and a mental case’, among other epithets, who should be deported from Kenya,” read part of the court papers.

Paul Amuga, Lotter’s lawyer, said that Vilhjoen had threatened to release further damning information to her husband’s bosses, relatives and their children.

Lotter moved to the High Court where he sought damages for libel as well as orders to stop Vilhjoen from further publicising defamatory information about him.

But Justice Joseph Sergon refused to grant him temporary orders restraining his wife on the basis that communication between spouses is privileged.

Aggrieved, Lotter moved to the Court of Appeal where justices Phillip Waki, Gatembu Kairu and Kathurima M’inoti agreed he needed the court’s protection against an aggrieved spouse determined to bring him down.

“The case before us, as correctly submitted by the appellant’s counsel, is totally different. It has nothing to do with publication of defamatory material between spouses.

“Here, it is one spouse, the wife, who took it upon herself to destroy the character of her husband in the eyes of the employer and his workmates, and still threatened to do more. Whether in fact the words were true or not will be a matter for trial, but it cannot be argued that there was no publication,” ruled the court.

After firing off the damning emails to her husband’s employer, Vilhjoen flew back to South Africa. In August 2015, Lotter filed for divorce in the chief magistrate’s court in Nairobi. The divorce case is yet to be heard.

The Court of Appeal found that Vilhjoen had to be stopped from destroying her husband’s character by sending his colleagues disparaging information about him until the battle he lodged at the High Court is determined.

The High Court had denied Lotter temporary orders gagging his estranged partner on grounds that husbands and wives enjoy privilege in the event they decide to expose each other’s dirty linen to third parties.

Justice Sergon had ruled that a man and a woman are assumed to be one when they marry hence they cannot turn and sue each other for defamation if they have not divorced.

But the appellate judges ruled that the couple’s case was different, saying that the emails sent to Lotter’s workmates had nothing to do with defamatory materials between spouses.

“With respect, the learned judge misconstrued the authority cited before him and made an error in principle. We are thus entitled to interfere with his discretion,” they said.

The court also heard that Lotter equally wanted to part ways permanently with Vilhjoen but the lower court dismissed his plea on the account that it did not have powers to dissolve foreign marriages.

Lotter appealed before High Court judge Farah Amin and the case is awaiting judgement.

The appellate judges observed that since the divorce case had not been settled, Lotter and Vilhjoen were still a legally married couple.

While Lotter had claimed that his wife’s actions were actuated by malice and meant to cause him maximum damage, Vilhjoen denied the allegations. The law, she argued, shielded a spouse from defamation.

She argued that since the marriage had not been dissolved, she still enjoyed immunity from being sued in the event she uttered words that injured her husband’s reputation.

“Under common law, which is applicable in Kenya, a wife cannot be held liable to libel against her husband during coverture, and in the same vein, communication between spouses is privileged and protected by law,” she said.

What now remains is for the trial court to determine whether Vilhjoen’s words against Lotter were true or not, and whether she ought to pay damages to him for defamation.

“We do not interfere with the finding by the trial court that, on the face of it, the words were defamatory. Once a reputation is lost, it is virtually irreversible and therefore damages may not be a suitable remedy. We think in this case, it is just that the wife be restrained from publishing further defamatory information against the appellant until the main suit is heard and determined,” the judges ruled.

The court also slapped Vilhjoen with the costs of the appeal.

DivorcesAlbertus Lotter SadieElsabel Vilhjoen Sadie