Otieno v Nation Newspapers Limited

High Court, at Kisumu

October 1, 2002

Tanui J

Civil Suit No 124 of 1999

Defamation - libel – pleadings in libel actions – inference of malice - requirement of particulars – facts which if pleaded must provide particulars – provisions of the Civil Procedure Rules order VI rule 6A.

Defamation - libel – pleading innuendo – where alleged defamatory words are used in a sense other than in their ordinary meaning – particulars of facts required – consequences of failure to give particulars in pleadings.

The plaintiff sued the defendant for libel following the publication of an article in the defendant’s newspaper that referred to the plaintiff in the report of a criminal case, the proceedings of which were in a magistrate’s court.

Counsel for the defendant raised a preliminary objection arguing that since the plaintiff alleged malice on the part of the defendant, the plaintiff had to give particulars of facts and matters from which malice could be inferred, in light of the defendant’s assertion of fair comment and privilege in ‘its’ defence. It was further submitted by the defendant’s advocate that the plaintiff’s reply to defence ought to be struck out for failure to comply with order VI rule 6A (3) of the Civil Procedure Rules in the foregoing terms. Finally, the defendant’s advocate submitted that the pleading of innuendo did not comply with the requirements of order VI rule 6A (1) of the said Rules.

Held:

1. In libel actions, the plaintiff is bound to give full particulars of facts and matters which lead to an inference of malice on the part of the defendant pursuant to order VI rule 6A of the Civil Procedure Rules.

2. In a reply to a defence in libel actions, the plaintiff must also give particulars of the alleged facts. It is insufficient to merely state that the publication is a distortion. It was necessary to particularise such distortions.

3. Where a party pleads malice, particulars must be given of facts or matters which would lead to the inference of malice.

4. The pleading of innuendo in the plaint was inconsistent with the requirement of order VI rule 6A (1); which require that where the words complained of were used in defamatory sense other than their ordinary meaning, particulars of the facts must be given.

5. Failure to comply with the mandatory rules rendered the plaintiff’s suit defective and invalid.

Plaint struck out.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

GR Oloo for the plaintiff

JG Kagucia for the defendant