Yobesh Oyaro v Alwaka t/a Weekly Citizen & 2 others

High Court, at Mombasa September 1, 2003

Onyancha J

Civil Suit No 612 of 2001

Defamation – libel and slander – law presumes harm – court to estimate harm in light of circumstances of the case – court in assessing amount of damages to take into account the plaintiff’s profile - general damages for defamation.

Damages - general damages - for defamation - libel - weekly newspaper imputing corruption, dishonesty and fraud on a person employed in public body - matters the court will consider in assessing damages - profile of the plaintiff - extent of circulation of the newspaper - quantum of damages.

The plaintiff brought an action against the defendants for defamation.

The plaintiff quoted passages from a weekly newspaper claiming that they seriously , damaged his reputation, character and good standing at his place of work and in the society and that the same meant both in the ordinary meaning and to the right thinking members of the society that the plaintiff was a liar, corrupt, dishonest and an incompetent person. The allegations were to the effect that as a manager in charge of procurement at the Kenya Ports Authority, the plaintiff had manipulated procurement procedures and colluded with suppliers to loot from the organization. The plaintiff further asked the court for a permanent injunction to issue to restrain the defendants from publishing or distributing newspapers in respect of him either personally or his profession, official duties character or reputation.

Held:

1. In all actions for libel and in some for slander, the law presumes that the plaintiff has suffered harm.

2. Although the person’s reputation has no actual cash value, the court will form its own estimate of the harm in the light of all the circumstances of the case. The court will therefore take into account the plaintiff’s profile vis-a vis what has been published about him.

3. The publication made in respect of the plaintiff was untrue, malicious and intended specifically to cause damage to him personally and in his employment as well as professionally.

4. In the circumstances of the case, the suitable amount to award the plaintiff would be Kshs 300,000.

Judgment for the plaintiff.

Cases

1. Oraro, George v Mbaja High Court Civil Case No 152 of 1993

2. Kulei, Joshua v Kalamka Limited Nairobi High Court Civil Case No 375 of 1997

3. Pyramid Strategies Limited v Charles A Shillanga Nairobi High Court Civil Case No 792 of 2000

4. Biwott, Kipyator Nicholas Kiprono v Clays Limited and 3 others Nairobi High Court Civil Case No 1067 of 1999

5. Biwott, Kipyator Nicholas Kiprono v Dr Ian West and Chester Stern Nairobi High Court Civil Case No 1068 of 1999

Statutes

No statutes referred.

Republic v Commissioner of Police ex parte Tarus t/a

Tarus & Company Advocates

High Court at Mombasa September 1, 2003

Khaminwa J

Miscellaneous Civil Case No 476 of 2003

Judicial Review –certiorari – application for certiorari – to quash decisions to prosecute advocate over dispute with client – proper procedure under section 53 of Advocates Act.

Criminal Practice and Procedure – abuse of court process - setting the criminal procedure in motion on a matter that can be tried by civil suit or other civil redress - complaint against an advocate by his client – advocate witholding client’s money pending the taxing of the client-advocate bill - client lodging complaint - advocate charged with stealing – whether criminal proceedings proper.

Advocate - complaint against advocate - proper forum for such complaints - whether proper to set criminal law in motion before exhausting alternative remedies - Advocates Act section 53.

The applicant was a practicing advocate who handled a suit for a client in which a settlement cheque was issued for Kshs 338,190. The cheque was forwarded to the applicant in his name. There arose a disagreement as to the amount due to the client. The applicant informed the client that payment would only be made to him after the client advocate bill had been taxed to ascertain the amount to be deducted as professional fees.

Following this the client made complaints to the insurance company and to the police whereafter the applicant was arrested and detained. He was released after spending 5 hours in police detention. The applicant was consequently charged with stealing by agent contrary to section 283 of the Penal Code.

Held:

1. Pursuant to section 53 of the Advocates Act (cap 16), complaints against an advocate are to be filed with the Complaints Commission established thereunder and not to the police.

2. Where a remedy is elsewhere provided and available to a person to enforce an order of a criminal court in his favour there is no valid reason why he should be permitted to involve the assistance of criminal law for the purpose of enforcement.

3. Criminal law is not to be used oppressively to punish acts which in truth might be technically a breach of criminal law, but which contain no real vice and which can only be best handled under a process other than the criminal process namely any of different systems of civil redress applicable.

4. If a case is more suitable for a trial in the civil courts than it can be resolved in a criminal tribunal then a decision to pursue criminal option must be suspect for ulterior motives other than search for justice.

5. A prosecution that is oppressive and vexatious is an abuse of the court process.

6. Although the Attorney General is not subject to control in the exercise of his power to prosecute criminal offences, he must exercise that power upon reasonable grounds.

Application allowed.

Cases

1. Kigorogolo v Rueshereka [1969] EA 426

2. Ex parte Johnson Knassnima Simiyu High Court Miscellaneous Civil Application No 8 of 1997

3. Ex parte Kipngeno arap Ngeny High Court Civil Miscellaneous Application No 4 of 2001

Statutes

1. Penal Code (cap 63) section 283(6)

2. Advocates Act (cap 16) section 53, 61, 80

3. Criminal Law (Amendment) Act No 5 of 2003 section 193A

Advocates

Mr Mabea for the Applicant.

Mr Okello, State Counsel, for the Respondent.