Busia Teachers Co-operative Credit and Savings

Society Ltd & another v Nation Media Group Ltd

High Court , at Busia June 10, 2004

Sergon J

Civil Case No 15 of 2001

Civil Practice and Procedure – affidavit – verifying affidavit not accompanying amended plaint –original plaint accompanied by verifying affidavit – no fatal violation of rules committed.

Damages – aggravated damages – in a defamation action – to be awarded in case of malice.

Defamation - libel - insinuation of insolvency against a co-operative society and incapacity of its officials - defendant admitting publication and failing to offer apology - measure of damages - general damages and aggravated damages.

The defendant published an article in its newspaper, the Daily Nation, on 19th February, 2001 which contained words to the effect that the 1st plaintiff was insolvent and incapable of meeting its financial obligations to its members. The plaintiffs sued the defendants in defamation contending that the article was false and malicious and aimed at causing mistrust among the 1st plaintiff’s members and employees. The matter was part heard and before another judge when hearing was ordered to start de novo. The plaintiff sought leave to rely on evidence earlier tendered before the original judge which leave was granted. The defendant’s contention was that because there was a failure to tender this evidence afresh, the plaintiffs had not proved their case.

Held:

1. The court has no jurisdiction to reconsider a submission which it has already heard and determined.

2. The law under order VIII rule 1(2) & (3) of the Civil Procedure Rules gives the court the discretion to admit a plaint without a verifying affidavit. The failure to file a verifying affidavit does not invalidate a plaint so long as a satisfactory reason is given by the plaintiff in which case the court may admit a verifying affidavit even after the plaint has been lodged.

3. A party who intends to challenge the competence of a plaint under order VII rule 1(3) of the Civil Procedure Rules must approach the Court by summons.

4. In all actions for libel and in some actions for slander the law presumes that the plaintiff has suffered having such actions perse.

5. Aggravated damages can only be awarded when the publication of an article is actuated by malice. Malice can be inferred when the defendant publishes an article while he knows that the same is false or he does not care whether it is true or false.

6. The plaintiffs ha dbeen defamed and they were entitled to Kshs 2,000,000 in general damages and Kshs 400,000 in aggracated damages.

Cases

Machira, John Patrick v Wangethi Mwangi & another High Court Civil Case No 1707 of 1996

Texts

Carter-Ruck, PF; Walker, R et al (Eds) (1992) Libel and Slander London: Butterworths 4th Edn p166

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VII rules 1(3), 10; order VIII rule 1(2), (3)

2. Defamation Act (cap 36)

Advocates

Mr Omondi for the Plaintiffs.

Mr Mbiyu for the Defendants.