Musician Akothee and blogger Robert Alai on Monday, November 19 exchanged profanities on Facebook, oblivious of the impact their words had on their huge online following.
“Akothee should show us her arms. [Makes unprintable allegations]. How do you claim that someone is shaming you with your private parts, when you desperately try to show it this much? Stop disturbing us. Search for wisdom where people purchase it. [Expletive],” wrote Alai on Facebook.
Akothee took to the same platform to retaliate, though her response was more obscene.
“Your mother sold her [expletive] to your dad all the years and the only thing she achieved was a disgrace like you. You actually look like a product of a failed [expletive]…” wrote Akothee on Facebook.
Either Akothee or Alai could have sued the other for being humiliated. However, it becomes complicated when both parties hurl obscenities at each other.
The Penal Code makes it criminal for anyone to use threatening, abusive or insulting words or engaging in provocative acts or breach of the peace.
If one is found guilty, the penalty is a fine not exceeding Ksh5, 000 or to imprisonment for a term not exceeding six months or both.
Section 238 of the Penal Code dwells on intimidation and molestation. Any person who intimidates or molests is liable to imprisonment for a term not exceeding three years.
The Kenya Communications Act, on the other hand, refers to an offensive message as a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.
Where a text is offensive, the sender becomes liable to a sentence of up to three months or a fine of up to Ksh50, 000.
On what constitutes abusive language, Kenya Laws Online says: “When the court is determining if the abuse sustained is enough for allocating compensation to injury, it is important to understand what is considered abusive language…. Words that humiliate the subject are determined as offensive. Racial and sexual slurs have been considered as grounds for a claim… The court will often start by looking at whether the language will cause severe emotional distress to an ordinary person with ordinary sensibilities and reason.”
And on whether either party is liable for damages when both parties exchange abusive or Insulting language, Kenya Laws Online says: “Although there is not clear rule on this issue, it is most likely that both parties will not be able to sue each other when they both used abusive or insulting language.”
“When one party has been the subject of verbal abuse, he or she is usually the only party that sustains psychological or emotional damage in the ordeal. However, when both parties have been equally abusive, there may be no claim for either. Usually, only one person is permitted to sue the other.
“Evidence, however, does strengthen the case when it is provided as a visual for the jury or judge. An illness or physical manifestation of the injuries shows those involved how the victim has suffered and why a claim for compensation is necessary.
“When seeking to resolve the claim for verbal abuse cases, it is best to obtain a lawyer for assistance. The elements that must be proven could be difficult without legal representation. Additionally, if other complications arise, the lawyer may have the knowledge necessary to ensure a smoother experience. This legal professional may improve the odds of a successful outcome.”