Gekong’a & another v Standard Ltd

High Court, at Nakuru

February 4, 2000

Rimita J

Civil Suit No 542 of 1997

Defamation – constituent elements of a defamatory publication – defences – fair comment on a matter of public interest.

The plaintiffs were advocates of the High Court of Kenya trading in the style and name of Gekong’a and Momanyi Advocates. The defendants were publishers of a local daily known as the East African Standard. The defendants published a story to the effect that the plaintiffs’ clients had threatened to lynch them for reportedly refusing to hand over Kshs 1 million awarded to them by a local Court as terminal benefits. The plaintiffs contended that this publication was damaging to their reputation. The defendant on the other hand claimed that it was true for a fact that the clients held a press conference in Nakuru town and gave the threats. That the reporter tried to verify the matters with the plaintiffs but the latter hang up the phone on them. The defendant thus raised a defence of fair comment on a matter of public interest.

Held:

1.The wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification.

2.A defamatory statement is one which has tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or esteem.

3. There was no malice on the part of the defendant and the plaintiffs had failed to establish their claim to the required standard.

Cases dismissed.

Cases

No cases referred to.

Texts

Heuston, RF (Ed) (1965) Salmond on the Law Torts London: Sweet & Maxwell 14th Edn p 195

Statutes

No statutes referred.

Advocates

Mutonyi for the plaintiffs

M/s Mohamed Muigai Mboya Advoates for the Defendant

Tulip Apartments Ltd & another v Southern Credit Banking Corporation Ltd & another

High Court, at Nairobi

May 16, 2002

Rimita J

Civil Case No 284 of 2002

Advocate– practising certificate – advocate not holding a current practising certificate - advocate filing suit and an application for party and dealing with the advocates for the defendants–– whether plaintiff’s suit and application incompetent on account of advocate’s lack of qualification.

The plaintiff’s plaint claiming relief against the defendants was dated 15th February, 2002 and was signed by a Mr Adala, who described himself had the advocate for the plaintiff. On 28th March, 2002, the plaintiff obtained interlocutory judgment as the defendants had failed to file their defences within the prescribed time. On 5th April, 2002, the first defendant filed a defence and served it on Mr Adala. In the plaintiff’s application seeking the striking out of this defence, the first defendant’s advocate issued a notice of preliminary objection stating that the application and the plaint were incompetent and bad in law as the advocate on record did not have a valid practising certificate at the time that he signed them. A Mr Kalove then came on record for the plaintiffs to prosecute the application for striking out and to oppose the preliminary objection. It emerged that Mr Adala was a member of the Law Society of Kenya whose name appeared in the Roll of Advocates but his practising certificate for the year 2002 had only been issued on 23rd April, 2002

Held:

1. Under section 24 of the Advocates Act, Mr Adala’s certificate became valid from the day it was issued. The effect was that since his previous certificate for the year 2001 had expired in December 2001, he had no practicing certificate for the months of January, February, March and part of April in the year 2002.

2. Recognition should be given to the disability of a client who appoints and authorizes an advocate whose name appears on the Roll of Advocates and whose only defect is a lack of a practising certificate. To say that the innocent client must be punished would prick the conscience of equity but each case should be examined on its own facts.

3. In the instant case, none of the parties knew that Mr Adala had no current practising certificate and indeed the plaintiffs changed advocates immediately the issue was brought to their attention by the defendants.

4. The defendants had also dealt with Mr Adala up to the point when they discovered that he had no current practising certificate. None of the parties should be punished for that.

5. The first defendant had failed to file a defence within 15 days after entering appearance and this was clearly in contravention of order VII rule 1(2) of the Civil Procedure Rules. The defence could not stand.

First Defendant’s preliminary objection rejected, defence struck out.

Cases

1. Seaford Court Estates Ltd v Asher [1949] 2 KB 481; 65 TLR 379; [1949] 3 All ER 155; 93 SJ 424

2. Kanji, In Re Misc Application No 67 of 1992 (Uganda)

Texts

1. Hailsham, Lord et al (Eds) (1983) Halsbury’s Laws of England London: Butterworths & Co Ltd 4th Edn Vol XLIV p 266

2. Horne, FT (1988) Cordery on Solicitors London: Butterworths & Co Ltd 8th Edn p 36

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VIII rule 1, order IX, order IXA, order L rule 16(1)

2. Advocates Act (cap 16) sections 2, 9, 24 3. Civil Procedure Act (cap 21)

 Advocates

Mr Kalove for the Plaintiff.

Ms Jan Mohamed for the 1st Defendant.

Mr Mayana for the 2nd Defendant.

[Ruling] Civil Practice and Procedure - application for the dismissal of a case for want of prosecution - case not having been fixed for hearing fourteen years since it was filed - whether the plaintiff was guilty of inexcusable delay in faling to take steps to prosecute the case - whether a fair trial of the case had been prejudiced on account of the delay - Civil Procedure Act seciton 3A - Civil Procedure (Revised) Rules Order 21 rule 2(1)