Machira v Mwangi & another

High Court, at Nairobi September 7, 2001

Mulwa J

Civil Case No 1709 of 1996

Defamation – libel – assessment of general and aggravated damages for defamation – circumstances from which malice can be inferred on the part of the person publishing a defamatory statement – pictures and statements published in daily newspapers giving the meaning that the plaintiff, an advocate, had swindled his client of her money – defendants failing to publish the true facts even after the defendant had presented them – whether the plaintiff had been defamed – whether malice could be inferred on the part of the defendants – quantum of damages.

Damages - general damages – defamation –assessment of general and aggravated damages for defamation by libel - circumstances from which malice can be inferred on the part of the person publishing a defamatory statement – pictures and statements published in daily newspapers giving the meaning that the plaintiff, an advocate, had swindled his client of her money – defendants failing to publish the true facts even after the defendant had presented them – whether the plaintiff had been defamed – whether malice could be inferred on the part of the defendants – quantum of damages.

The plaintiff brought a suit against the defendants for defamation asking for general and exemplary damages and for the publication of an apology for certain allegedly libelous matter published in two daily newspapers having a national circulation. The plaintiff later brought an application to strike out the defendants’ defence under Order VI rule 13(1)(b), (c) and (d) of the Civil Procedure Rules but the application was dismissed. Upon appeal to the Court of Appeal against the order of dismissal, the defendants’ defence was struck out and interlocutory judgment was entered for the plaintiff. The appellate court then directed that the suit be heard on the issue of the amount of damages to which the plaintiff was entitled.

The plaintiff complained that the defendants had defamed him by publishing in their two daily newspapers statements which in their ordinary and natural meaning were understood to mean that the plaintiff, who was an advocate, had swindled his supposed client of her money. He testified that as a result of the defamation, his reputation and integrity both personally and as an advocate had been injured and he had suffered distress, agony and mental torture and brought into public contempt.

Held:

1. The defendants’ defence having been struck out, there was no defence against the plaintiff’s allegations regarding the defamatory nature of the defendants’ publications.

2. The statements published had the effect of lowering the plaintiff’s reputation personally and as an advocate in the minds of right thinking members of the community and made them shun or avoid him.

3. In defamation, malice on the part of the defendant can be inferred where in publishing the information he knows that the publication is false or does not care whether it is true or false. The defendants’ publication in this case was malicious.

4. The plaintiff was entitled to Kshs. 8 Million as compensatory damages, Ksh. 2 Million as aggravated damages and Kshs. 200,000 in lieu if a timely and appropriate apology.

Judgment for the plaintiff.

Cases

1. Cassel & Co Ltd v Broome [1972] 1 All ER 801; [1972] AC 1027; [1972] 2 WLR 645

2. John v MGN Ltd [1996] 2 All ER 35; [1996] 3 WLR 593

3. Kulei, Joshua v Kalamka Ltd High Court Civil Case No 375 of 1997

4. Biwott v Clays Ltd [2000] 2 EA 334

5. Njoroge v Kenya Commercial Bank Ltd [1992] LLR 2357

6. Sutcliffe v Pressdram Ltd [1990] 1 All ER 269; [1991] 1 QB 153; [1990] 2 WLR 271

7. Khasakhala, Eric Edward v Jeremiah Aurah & 2 others High Court Civil Case No 1709 of 1987

8. Doshi, Lalit v Nation Newspapers High Court Civil Case No 3750 of 1994

9. Bonnard & another v Perryman (1891-4) All ER 965; [1891] 2 Ch 269

10. Fraser v Evans & others [1969] 1 All ER 8; [1969] 1 QB 349; [1968] 3 WLR 1172.

11. Kiptanui, Abraham Kipsang v Francis Mwaniki & 4 others High Court Civil Case No 42 of 1987

Texts

1. Rampton, R (Ed) (1983) Duncan and Neil on Defamation London: Sweet & Maxwell 2nd Edn.

2. Walker, R et al (Eds) (1985) Carter-Ruck on Libel and Slander London: Butterworths & Co Ltd 4th Edn p 66

3. Price, D; Duodo, K (Eds) (1998) Defamation Law and Practice London: Sweet and Maxwell p 143 para 14.07

Statutes

1. Constitution of Kenya section 79(1)

2. Defamation Act (cap 36) section 16 (A)

Ssebaggala & Sons Electric Centre Ltd v Kenya

National Shipping Line Ltd

High Court, at Nairobi July 31, 2001

Mulwa J

Civil Case No 1723 of 2000

Civil Practice and Procedure – affidavit – form of affidavits - jurat – where the jurat is positioned separately overleaf – whether this amounts to an irregularity warranting the striking out of the affidavit – guidelines in determining whether technical irregularities are fatal to the interlocutory application accompanying the affidavit.

In an application to set aside a judgment, a preliminary objection was raised by the respondent to the effect that the supporting affidavit was irregular because its jurat appeared overleaf from the main page, and therefore it should be struck out. The applicant contended that the contents of the affidavit were not disputed and the irregularity did not go to the substance of the application and therefore the affidavit should not be struck out.

Held:

1. As a general rule, the jurat in affidavits should follow immediately after the text and should never be hanging alone on a different page.

2. Affidavits should never end on one page with the jurat following overleaf. The jurat should follow immediately after the end of the text. An affidavit which is in breach of this proposition is an irregular affidavit.

3. Order XVIII rule 7 allows the Court to accept an affidavit despite its defect of form. Striking down pleadings, like the affidavit complained of here, is an action of a most drastic nature and should be exercised with due care and judicial caution.

4. Technicalities which do not touch on the substance of the application or go to the root of the case and which do not prejudice the other side should not be used to emasculate or strike down court documents filed by one party. In this case, it had not been shown that the plaintiff would suffer any prejudice and that the irregularity was fundamental.

5. The proper procedure in such circumstances is for the offending party to seize the opportunity to apply for amendment once an irregularity has been pointed out.

Preliminary objection overruled.

Cases

1. Agip (K) Ltd v Jimmy Komo High Court Civil Case No 1738 of 2000

2. Boyes v Gathire [1969] EA 385

Texts

Jacob, IH et al (Ed) (1998) The Supreme Court Practice 1999 London:

Sweet & Maxwell Stevens & Sons Ltd Vol 1 order 41 rule 1/12.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XVII rule 7; order L rule

15(2)

Advocates

Mr Waweru for the Applicant.

Mrs Effendi for the Respondent.

Abiero v Thabiti Finance Company Ltd & another

High Court, at Nairobi July 27, 2001

Mulwa J

Civil Case No 1025 of 2000

Civil Practice and Procedure - pleadings - fraud - how fraud may be pleaded.

Land - registration of title - where it is not proved that new registered owner was fraudulent - whether register can be rectified - what remedy is available to the original owner.

The plaintiff charged the suit property, namely, LR No 209/6252 to the 1^st defendant as security for financial facilities and banking accommodation granted by the 1st defendant to one Mathews Ouma Mwango, the principal debtor. Subsequently, the principal debtor fell into arrears with the loan repayments. The plaintiff paid off the principal sum but was unable to pay the accrued interest. After renogotiations and rescheduling agreements, the 1st defendant issued notification of its intention to sell the suit property by public auction. There was negotiation between the parties wherein it was agreed that the plaintiff should dispose of the suit property by private treaty to settle the loan accounts. It emerged subsequently that at the time of the negotiations, the 2nd defendant had transferred the suit property to one David Mburu Gichere, who was not a party to the suit. The plaintiff’s case was that the said transfer was fraudulent.

Held:

1. Fraud must be specifically pleaded and particulars of fraud alleged must be stated on the face of the pleading. Fraud, however, is a conclusion of law. If the facts alleged in the pleading are such as to create a fraud it is not necessary to allege the fraudulent intent.

2 Fraud is a generic term, embracing all multifarous means which human beings devise and which are resorted to by one individual to get advantage over another by false suggestions, or by suppression of truth, and include all surprise, trick, winning, dissembling and any unfair way by which another is cleared.

3 Section 23 (1) of the Registration of Titles Act gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party.

4. Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses.

5. Where a party has been wrongfully deprived of his land whose title has been conveyed to an innocent third party with full proprietary rights, the only recourse which the Court has is to deal with the matter in monetary terms by awarding damages.

Judgment for the plaintiff.

Cases

1. Mayers & another v Akira Ranch Limited [1974] EA 169

2. BEA Timber Co v Gill (Inder Singh) [1959] EA 463

3. Fazal Kassam (Mills) Ltd v Kassam and Gulamhusein [1960] EA 1042

4. El Kiyumi v El Ruwehi [1958] EA 553

5. Ng’ok Joseph N K Arap v Justice Moijo Ole Keiwua & others Civil Application No NAI 60 of 1997

6. Stroms Bruks Aktie Bolag v Hutchinson [1905] AC 515

7. Sande v Kenya Co-operative Creameries Mombasa [1992] LLR 314

8. Kimani v Attorney General [1969] EA 502

9. Njoroge v Kenya Commercial Bank Ltd [1992] LLR 2357

10. General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1975]

1 WLR 819; [1975] 2 All ER 173

11. Friedman & Mason v Njoro Industries Ltd (1954) 21 EACA 172

Texts

1. McGregor, H (1988) McGregor on Damages London: Sweet & Maxwell

15th Edn pp 1119-1129

2. Black, HC Black’s Law Dictionary St Paul Minnesota: West Publishing Co

3. Simonds, V et al (Eds) (1956) Halsbury’s Laws of England London: Butterworths 3rd Edn Vol XV p space 263

4. Hailsham, Lord et al (Eds) (1975) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XII p space416 para 1113

5. McGregor, H (2003) McGregor on Damages London: Sweet & Maxwell 17th Edn p 8

Statutes

1. Evidence Act (cap 80) section 63

2. Registration of Titles Act (cap 281) section 23(1)