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Case Type: Civil Case


Diamond Industries Limited V Jahanara Gulam & 2 Others (All T/A Taanzym Stores) [2015] eKLR

Case Number: Civil Case 199 of 2012 Date Delivered: 24 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Diamond Industries Limited v Jahanara Gulam, Mustafa Musa & Jamal Abdulkarim Musa (All T/A Taanzym Stores)

Citation: Diamond Industries Limited V Jahanara Gulam & 2 Others (All T/A Taanzym Stores) [2015] eKLR

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Narodhco (K) Limited V Jahanara & 2 Others [2015] eKLR

Case Number: Civil Case 192 of 2014 Date Delivered: 24 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Narodhco (K) Limited v Jahanara, Gulammustafa Musa, Jamal Abdulkarim Musa & Jamal Abdulkarim Musa Varavani t/a Taanzym Stores

Citation: Narodhco (K) Limited V Jahanara & 2 Others [2015] eKLR

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Al-Riaz International Limited V Ganjoni Properties Limited [2015] eKLR

Case Number: Civil Case 158 of 2014 Date Delivered: 24 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Al-Riaz International Limited v Ganjoni Properties Limited

Citation: Al-Riaz International Limited V Ganjoni Properties Limited [2015] eKLR

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Devoter Okwach & 22 Others V Board Of Trustess - Telposta Pension Scheme & Another [2015] eKLR

Case Number: Civil Case 41 of 2015 Date Delivered: 24 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Devoter Okwach, Anisa Abdalla, Anna Isalu Nduga, Ramila Mohamed Ahmed & 19 others v Board of Trustess- Telposta Pension Scheme & Llyod Masika Ltd

Citation: Devoter Okwach & 22 Others V Board Of Trustess - Telposta Pension Scheme & Another [2015] eKLR

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Koki Muia V Samsung Electronics East Africa Ltd [2015] eKLR

Case Number: Cause 1583 of 2013 Date Delivered: 21 Aug 2015

Judge: Linnet Ndolo

Court: Employment and Labour Relations Court at Nairobi

Parties: Koki Muia v Samsung Electronics East Africa Ltd

Citation: Koki Muia V Samsung Electronics East Africa Ltd [2015] eKLR

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Rahamtulah Rahami Ahmed V Wilberforce Njenga African Banking Corporation Limited & 2 Others [2015] eKLR

Case Number: Civil Case 45 of 2015 Date Delivered: 21 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Rahamtulah Rahami Ahmed v Wilberforce Njenga African Banking Corporation Limited, Registrar of Titles Mombasa & The Attorney General

Citation: Rahamtulah Rahami Ahmed V Wilberforce Njenga African Banking Corporation Limited & 2 Others [2015] eKLR

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Isaac Kaesa Mwangangi & Another V Jacob Kipchumba & Another [2015] eKLR

Case Number: Civil Case 248 of 2003 Date Delivered: 21 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Isaac Kaesa Mwangangi & another v Jacob Kipchumba & Yasin Swaleh Waswa

Citation: Isaac Kaesa Mwangangi & Another V Jacob Kipchumba & Another [2015] eKLR

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Said Mohamed Andallah & 2 Others V Mohamed Hatimy & 2 Others [2015] eKLR

Case Number: Civil Case 65 of 2008 Date Delivered: 21 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Said Mohamed Andallah Faud, Mohamed Raweh & Absusalam Bin Said v Mohamed Hatimy, Erastus Okul v Aziz Mohamed

Citation: Said Mohamed Andallah & 2 Others V Mohamed Hatimy & 2 Others [2015] eKLR

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Hesbon Pande Nyaidho V Joel Okudo Ondu & 4 Others [2015]eKLR

Case Number: Hcc 108 of 2013 Date Delivered: 20 Aug 2015

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Hesbon Pande Nyaidho v Joel Okudo Ondu,George Auma Asola,Meshack Owino Ondu,Mary Achieng & Edward Kenneth Olando Wambia

Citation: Hesbon Pande Nyaidho V Joel Okudo Ondu & 4 Others [2015] eKLR

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Anna Awinja V Rashid Ali & Another [2015] eKLR

Case Number: Cause 867 of 2011 Date Delivered: 20 Aug 2015

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Anna Awinja v Rashid Ali & Zahra Rashid

Citation: Anna Awinja V Rashid Ali & Another [2015] eKLR

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Susan Atieno Ayoo & Another V Natioanl Social Security Fund [2015] eKLR

Case Number: Civil Case 34 of 2011 Date Delivered: 20 Aug 2015

Judge: Anthony Kaniaru

Court: Environment and Land Court at Kisumu

Parties: Susan Atieno Ayoo & Philip Olago v Natioanl Social Security Fund

Citation: Susan Atieno Ayoo & Another V Natioanl Social Security Fund [2015] eKLR

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Mohammed Athumani V Charles Ondimu Ogori [20156] eKLR

Case Number: Civil case 10 of 2012 Date Delivered: 03 Aug 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Mohammed Athumani v Charles Ondimu Ogori

Citation: Mohammed Athumani V Charles Ondimu Ogori [20156] eKLR

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Gladys Marjorie Akinyi V Dorcas J Jahenda & Another [2015] eKLR

Case Number: Civil Case 619 of 2004 Date Delivered: 31 Jul 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Gladys Marjorie Akinyi v Dorcas J Jahenda & Teleposta Pension Scheme Trustees

Citation: Gladys Marjorie Akinyi V Dorcas J Jahenda & Another [2015] eKLR

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Mohamed Siaka Ali (ThroughMohamed Shaibu Shosi – Personal Legal Representative) V Sunpalm Limited & 3 Others [2015] eKLR

Case Number: Hccc 663 of 2005 Date Delivered: 31 Jul 2015

Judge: John Mutungi

Court: Environment and Land Court at Nairobi

Parties: Mohamed Siaka Ali (ThroughMohamed Shaibu Shosi – Personal Legal Representative) v Sunpalm Limited, Issa Timamy T/A Timamy & Co. Advocates, Stewart Madzayo T/A Madzayo & Co. Adovates & Chief Land Registrar

Citation: Mohamed Siaka Ali (ThroughMohamed Shaibu Shosi – Personal Legal Representative) V Sunpalm Limited & 3 Others [2015] eKLR

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Abdi Mohamed Farah V Nairobi Star Publication Ltd & Another [2015] eKLR

Case Number: Civil Case 15 of 2013. Date Delivered: 31 Jul 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Abdi Mohamed Farah v Nairobi Star Publication Ltd & Dominic Wabala

Citation: Abdi Mohamed Farah V Nairobi Star Publication Ltd & Another [2015] eKLR

When an award for damages can be granted in lieu of apology in defamation suits

 

Abdi Mohamed Farah v Nairobi Star Publication Ltd and another

High court at Nairobi

Civil Case No.15 of 2013

R E Aburili, J

July 31, 2015

Reported by Teddy Musiga & Daniel Hadoto

Brief facts

The defendants published, in the Star Newspaper an article titled “Al shabaab implicated in Garissa”.

The plaintiff brought this suit arguing that the article was false, malicious, and defamatory by innuendo and was calculated to discredit the plaintiff and had indeed exposed him to danger of losing his life.

He consequently prayed for damages, and an apology amongst others. The vehemently defendant denied the allegations.

 

Issue

  1. Whether there exist circumstances in which an award for damages can be granted in lieu of an apology in defamation suits.

 

Tort - defamation- libel – elements of proving defamation- - remedies for defamation suits – claim where plaintiff was awarded damages in lieu of an apology.

 

Held

  1. It was common ground that in a suit founded on defamation the plaintiff had to prove that the matter of which the plaintiff complained of was defamatory in character. That defamatory statement or utterance was published by the defendants.  Publication in the sense of defamation meant that the defamatory statement was communicated to someone other than the person defamed. That it was published maliciously in slander, subject to certain exceptions, that the plaintiff had suffered special damage.

 

  1. A defamatory statement had to be false and it also had to be defamatory to the plaintiff, that it was to say, the statement had to contain, whether expressly or by implication, a statement of fact or expression of opinion which would lower the plaintiff in the estimation of a reasonable reader who had knowledge of such other facts not contained in the statement, as the reader was reasonably be expected to possess.

 

  1. The publication was defamatory of the plaintiff. It referred to him. It was also false, the defendant had not in any way tried to verify the information acquired from the report. The defendant had not also adduced evidence to support the allegations. If the publication was true as alleged by defendants then the police serving in the station would have arrested him since we was a suspect and a security threat, they instead advised him to seek legal redress.

 

  1. The fact of the plaintiff being a security threat could not have been unknown to the security agencies and more so, the local police station. If he had been a suspect and in hiding then the defendants would have been the first persons to alert the police or the authorities that the wanted man was now found and the plaintiff could have been arrested without difficulty, given the gravity of the allegations.

 

 

  1. The matter of which the plaintiff complained was defamatory in character. The words published by the defendants were grossly defamatory of the plaintiff and intended to injure the reputation of the plaintiff and expose him to hatred and ridicule as an al shabaab operative without the slightest link being proved to exist between him and the said terror group.

 

  1. It was not disputed that the article was published by the defendants. The defendant had pleaded that the article and words were published innocently and were indeed a fair representation of an intelligence report. Court had no doubt therefore that the defamatory publication was published by the defendants.

 

 

  1. The words were malicious. Malice in the circumstances did not necessarily mean spite or ill-will but recklessness itself could be evidence of malice. Evidence of malice could be found in the publication itself if the language used was utterly beyond or disproportionate to the facts.  That could lead to an inference of malice but the law did not weigh in a fair balance and it did not follow merely because the words are excessive, there was therefore malice. Malice could also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice could be founded in the publication itself if the language used was utterly beyond the facts. The failure to inquire into the facts was a fact from which inference of malice may properly be drawn. Any evidence, which showed that the defendant knows the statement was false or had not cared whether it be true or false will be evidence of malice.

 

  1. The publications were an unconfirmed lies which was evidence of malice. Therefore, the publications were justified. No documents or other evidence had been adduced to prove the justification. The publication was either a fair comment or made on a privileged occasion as no attempt was made to provide particulars of fair comment or privileged occasion.

 

 

  1. The plaintiff had proved that he was defamed by the defendants by their publication of the story linking the plaintiff to the al shabaab terror group and with the aforesaid; the court was then left to determine the prayers sought in the plaint.

 

  1. An award of damages in defamation case was discretionary. No case was like the other. In the exercise of discretion to award damages for defamation, the court had wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions and objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it was published and any repetition; subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.

 

  1. In situations where the author or publisher of a libel could have with due diligence verified the libelous story or in other words, where the author or publisher was reckless or negligent, those factors had to be taken into account in assessing the level of damages. The level of damages awarded had to be such as to act as deterrence and to instil a sense of responsibility on the part of the authors and the publishers of libel and that personal rights, freedoms and values should never be sacrificed at the altar of profiteering by authors and publishers.

 

  1. The successful plaintiff in a defamation action was entitled to recover, the general compensatory damages such sum as will compensate him for the wrong he has suffered.  That must compensate him for damages to his reputation, vindicate his name, and taken account of the distress, hurt and humiliation which the defamatory publication caused.

 

  1. Exemplary damages on the other hand had gone beyond compensation and were meant to “punish” the defendant. Aggravated damages could be ordered against a defendant who acted out of improper motive e.g where it was attracted by malice; insistence on a flurry defence of justification or failure to apologize.

 

 

  1. The defendants could have been ordered to make an unconditional apology, in equal measure of the size of the publication in their Newspaper page with equal prominence that they gave to the impugned article within Seven (7) days from the date of this judgment. However, the period between 22nd November 2012 and the judgment date (28th July 2015) which was well over two and a half years was so long that to order an apology would have had no effect on the damage to the plaintiff’s reputation in this digital world.

 

Ksh3,000,000.00 as general damages

 Ksh 1,000,000.00 as aggravated damages

Kshs 500,000.00 damages in lieu of apology.

Costs of this suit and interest on damages

Costs at court rates from date of this judgment until payment in full.

 

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Steve Mwasya & Another V Rosemary Mwasya [2015] eKLR

Case Number: Civil Case 221 of 2011 Date Delivered: 31 Jul 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Steve Mwasya & Jacinta Ndidnda Muendo v Rosemary Mwasya

Citation: Steve Mwasya & Another V Rosemary Mwasya [2015] eKLR

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Edwards Kings Onyancha Maina T/A Matra International Associates V China Juangsu Ietc Corporation & 10 Others [2015] eKLR

Case Number: Civil Case 440 of 2011 Date Delivered: 31 Jul 2015

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Edwards Kings Onyancha Maina T/A Matra International Associates v China Juangsu Ietc Corporation, James Ochieng Oduol T/A Ochieng Oduol & Co. Advocates, Rpv Wendo, J Nyamu, M G Mugo, K H Rawal, J P Ransley, Chief Justice, Attorney General, Ochieng Onyango Kibet & Ohaga Advocates & Cecil Lazaro Kuyo

Citation: Edwards Kings Onyancha Maina T/A Matra International Associates V China Juangsu Ietc Corporation & 10 Others [2015] eKLR

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Telkom Kenya Limited V EM Communication Limited T/A Popote Wireless [2015] eKLR

Case Number: Civil Case 375 of 2010 Date Delivered: 31 Jul 2015

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Telkom Kenya Limited v EM Communication Limited T/A Popote Wireless

Citation: Telkom Kenya Limited V EM Communication Limited T/A Popote Wireless [2015] eKLR

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Bamburi Special Products Ltd V Remax Construction Ltd [2015] eKLR

Case Number: Civil Case 431 of 2014 Date Delivered: 31 Jul 2015

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Bamburi Special Products Ltd v Remax Construction Ltd

Citation: Bamburi Special Products Ltd V Remax Construction Ltd [2015] eKLR

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S.W.G V H.M.K [2015] eKLR

Case Number: Civil Case 13 of 2010 Date Delivered: 31 Jul 2015

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: S.W.G v H.M.K

Citation: S.W.G V H.M.K [2015] eKLR

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Samson Ngugi Ichung’wa T/a Grenair V National Industrial & Credit Bank Limited, Raju Dhanani & Joseph Gikonyo T/a Garam Investments [2015] eKLR

Case Number: Civil Case 86 of 2010 Date Delivered: 31 Jul 2015

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Samson Ngugi Ichung’wa t/a Grenair v National Industrial & Credit Bank Limited, Raju Dhanani & Joseph Gikonyo t/a Garam Investments

Citation: Samson Ngugi Ichung’wa T/a Grenair V National Industrial & Credit Bank Limited, Raju Dhanani & Joseph Gikonyo T/a Garam Investments [2015] eKLR

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Kundan Singh Construction International Limited V Bank Of Africa Kenya Ltd [2015] eKLR

Case Number: Civil Case 71 of 2015 Date Delivered: 31 Jul 2015

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Kundan Singh Construction International Limited v Bank Of Africa Kenya Ltd

Citation: Kundan Singh Construction International Limited V Bank Of Africa Kenya Ltd [2015] eKLR

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Bamburi Special Products Ltd V Paragon Holding Limited [2015] eKLR

Case Number: Civil Case 432 of 2014 Date Delivered: 31 Jul 2015

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Bamburi Special Products Ltd v Paragon Holding Limited

Citation: Bamburi Special Products Ltd V Paragon Holding Limited [2015] eKLR

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Thomas Carroll V Edward Gitahi Kihia [2015] eKLR

Case Number: Civil Case 217 of 2004 Date Delivered: 30 Jul 2015

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Thomas Carroll v Edward Gitahi Kihia

Citation: Thomas Carroll V Edward Gitahi Kihia [2015] eKLR

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Nyali Construction & Ele V Barclays Bank Limited [2015] eKLR

Case Number: Civil Case 315 of 2007 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Nyali Construction & Ele v Barclays Bank Limited

Citation: Nyali Construction & Ele V Barclays Bank Limited [2015] eKLR

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Clearspan Construction (A) Ltd V East African Gas Company & Another [2015] eKLR

Case Number: Civil Case 1 of 2004 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Clearspan Construction (A) Ltd v East African Gas Company & Viking World Investment SA

Citation: Clearspan Construction (A) Ltd V East African Gas Company & Another [2015] eKLR

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Agam Investments Limited V Voi Development Company Limited & 2 Others [2015] eKLR

Case Number: Civil Case 308 of 2007 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Agam Investments Limited v Voi Development Company Limited & 2 others

Citation: Agam Investments Limited V Voi Development Company Limited & 2 Others [2015] eKLR

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Universal Pharmacy (K) Limited V Pacific International Lines (PTE) Limited & Another [2015] eKLR

Case Number: Civil Case 7 of 2004 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Universal Pharmacy (K) Limited v Pacific International Lines (PTE) Limited & Kenya Railways Corporation

Citation: Universal Pharmacy (K) Limited V Pacific International Lines (PTE) Limited & Another [2015] eKLR

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Jumilla Attarwalla & Another V Hussein Abdulaziz & Another [2015] eKLR

Case Number: Civil 231 of 2000 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Jumilla Attarwalla & Shehnaz Issadjee v Hussein Abdulaziz & Mary Am Hemed

Citation: Jumilla Attarwalla & Another V Hussein Abdulaziz & Another [2015] eKLR

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Bridge International Academies Limited V Robert Kimani Kiarie [2015] eKLR

Case Number: Civil Case 56 of 2014 Date Delivered: 30 Jul 2015

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Bridge International Academies Limited v Robert Kimani Kiarie

Citation: Bridge International Academies Limited V Robert Kimani Kiarie [2015] eKLR

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Eco Bank Limited V Elsek & Elsek (Kenya) Limited & 3 Others [2015] eKLR

Case Number: Civil Case 70 of 2014 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Eco Bank Limited v Elsek & Elsek (Kenya) Limited, Elsek & Elsek Construction Limited, Osman Erdinc Elsek & Denis Elsek

Citation: Eco Bank Limited V Elsek & Elsek (Kenya) Limited & 3 Others [2015] eKLR

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Evans Kidero V Bonny Khalwale [2015] eKLR

Case Number: Civil Case 238 of 2015 Date Delivered: 30 Jul 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Evans Kidero v Bonny Khalwale

Citation: Evans Kidero V Bonny Khalwale [2015] eKLR

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Ushago Diani Investment Limited V Jabeen Manan Abdulawahab [2015] eKLR

Case Number: Civil 157of 2009 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Ushago Diani Investment Limited v Jabeen Manan Abdulawahab

Citation: Ushago Diani Investment Limited V Jabeen Manan Abdulawahab [2015] eKLR

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Atanasio Kithure Francis V Clare Regina Kagwiria & 2 Others [2015] eKLR

Case Number: Civil Case 25 of 2015 Date Delivered: 30 Jul 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Atanasio Kithure Francis v Clare Regina Kagwiria,Fridah Kagendo Kaburu & Ruth Kathambi Mutua

Citation: Atanasio Kithure Francis V Clare Regina Kagwiria & 2 Others [2015] eKLR

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Jacob Mbwiria V Misheck Kanake Reuben [2015] eKLR

Case Number: Civil Case128 of 2012 Date Delivered: 30 Jul 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Jacob Mbwiria v Misheck Kanake Reuben

Citation: Jacob Mbwiria V Misheck Kanake Reuben [2015] eKLR

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Khalil Hud Ahmed V Diamond Trust Bank Kenya Limited [2015] eKLR

Case Number: Civil 131 of 2014 Date Delivered: 30 Jul 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Khalil Hud Ahmed v Diamond Trust Bank Kenya Limited

Citation: Khalil Hud Ahmed V Diamond Trust Bank Kenya Limited [2015] eKLR

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Wil Developers & Construction Limited & 3 Others V Consolidated Bank Of Kenya Limited [2015] eKLR

Case Number: Civil Case 24 of 2015 Date Delivered: 30 Jul 2015

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Wil Developers & Construction Limited, Bronkho Investment Limited, Johnson Mwanzia Wambua & Alice Wangari Mwanzia v Consolidated Bank of Kenya Limited

Citation: Wil Developers & Construction Limited & 3 Others V Consolidated Bank Of Kenya Limited [2015] eKLR

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Concord Insurance Co Limited V NIC Bank Limited [2015] eKLR

Case Number: Civil Case 175 of 2011 Date Delivered: 29 Jul 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Concord Insurance Co Limited v NIC Bank Limited

Citation: Concord Insurance Co Limited V NIC Bank Limited [2015] eKLR

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M M T V S N M & 3 Others [2015] eKLR

Case Number: Civil Case 169 of 2009 Date Delivered: 29 Jul 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: M M T v S N M, G K, J G M & P K N

Citation: M M T V S N M & 3 Others [2015] eKLR

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John Wesonga Sambula V Julias Muthoni Njoroge [2015] eKLR

Case Number: Civil Case 48 of 2011 Date Delivered: 29 Jul 2015

Judge: Samwel Ndungu Mukunya

Court: High Court at Bungoma

Parties: John Wesonga Sambula v Julias Muthoni Njoroge

Citation: John Wesonga Sambula V Julias Muthoni Njoroge [2015] eKLR

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Jakoyo Midiwo V KTN Baraza Limited [2015] eKLR

Case Number: Civil Case 382 of 2004 Date Delivered: 28 Jul 2015

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jakoyo Midiwo v KTN Baraza Limited

Citation: Jakoyo Midiwo V KTN Baraza Limited [2015] eKLR

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David M Githere & 16 Others V Walter E O Nyambati & 14 Others [2015] eKLR

Case Number: Civil Case 253 of 2009 Date Delivered: 28 Jul 2015

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: David M Githere & 16 others v Walter E O Nyambati & 14 others

Citation: David M Githere & 16 Others V Walter E O Nyambati & 14 Others [2015] eKLR

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Dl Koisagat Tea Estate Ltd V Eritrea Othodox Tewhdo Church Ltd [2015] eKLR

Case Number: Civil Case 56 of 2015 Date Delivered: 28 Jul 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Dl Koisagat Tea Estate Ltd v Eritrea Othodox Tewhdo Church Ltd

Citation: Dl Koisagat Tea Estate Ltd V Eritrea Othodox Tewhdo Church Ltd [2015] eKLR

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B & K Design Limited V Emmaculate Mwaura Njeri [2015] eKLR

Case Number: Civil Case 73 of 2014 Date Delivered: 27 Jul 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: B & K Design Limited v Emmaculate Mwaura Njeri

Citation: B & K Design Limited V Emmaculate Mwaura Njeri [2015] eKLR

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Law Society Of Kenya V Faith Waigwa & 8 Others [2015] eKLR

Case Number: Civil Case 196 of 2015 Date Delivered: 27 Jul 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Law Society of Kenya v Faith Waigwa, Wambugu Gitonga, Alex Gatundu, Kimani Waweru, Jacqueline Manani, Edwin Sifuna, Aluso Ingati, Kinyanjui Theuri & Charles Kanjama

Citation: Law Society Of Kenya V Faith Waigwa & 8 Others [2015] eKLR

The purpose of cross-examination is to clarify facts.

The Law Society of Kenya v Faith Waigwa and 9 others

Civil case No. 196 of 2015

High court at Nairobi

J K Sergon, J

July 27, 2015

Reported by Teddy Musiga & Daniel Hadoto

 

Brief facts

The plaintiff’s advocate made an application for   leave to cross-examine the 1st, 3rd, 6th and 7th defendants respectively over averments they made in affidavits they swore in response to the averments made the plaintiff‘s C.E.O (Apollo Mboya). Naturally the defendants vehemently objected to the application.

Issue

  1. What is the rationale for cross-examination?

 

Civil practice and procedure – evidence- affidavits- averments in affidavits- cross examination on averments in affidavits- power of court to order for cross examination in averments.

 

Held

  1. Cross-examination of witnesses was a mechanism which used to bring out desirable facts, to modify or clarify or to establish the cross-examiner’s case.  In other words, cross-examination was meant to extract the qualifying facts or circumstances left out by a witness in a testimony given in examination in chief.
  2. The exercise of cross-examination was intended to impeach the credit worthiness of a witness.  In cross-examination a witness could be asked questions tending for example to expose the errors, contradictions, omissions and improbabilities.  In the process, the veracity of a witness’s averments was tested. 

 

  1. The exercise of cross-examination in some cases gave the court an early chance to get the glimpse of what to expect during the substantive hearing.  This could assist the court in making the necessary directions at the pre-trial conferences envisaged under order 11 of the civil procedure Rules.

 

  1. The process of cross-examination could not be used to convert the hearing of an interlocutory application into a mini or full trial of the suit.  It was a difficult balancing act which the court had to live with for a long time.  It was also a process which was sparingly used because it could lead to a considerable delay in concluding an otherwise straightforward dispute.

 

  1. Under order 19 rule 2(1) of the civil procedure rules the high court was given a wide discretion to order attendance of a deponent for cross-examination on the application of either party.  Such an application had to be made in good faith and not on the spar of the moment or just because the other side had successfully done so. 

 

  1. The affidavits subject of the application at times took totally different directions.  At some point they appeared to contradict each other.  There was need to settle those questions by interrogating by way of cross-examination of the contentious and contradictory positions that have emerged.

 

Obiter-The issues sought to be interrogated by cross- examination appeared to be substantive and were likely to give the way forward on the hearing and determination of the substantive suit. It was time learned counsels and their clients chose to comply with the provisions of Order 11 of the Civil Procedure Rules and thereafter a pre-trial conference could be undertaken to instead have the substantive suit heard and determined expeditiously.

 

Defendants summoned to attend court for the purpose of cross examination and re-examination.

 

Cases: None referred to

Statutes

East Africa

  1. Civil Procedure Rules (cap 21 Sub Leg) order 11, order 19 rule 2(1); 40 – (Interpreted)

Advocates:

  1. Mr Ongoya for the Plaintiff
  2. Mr Masika and Miss Njuguna H/B for Mr Okero for the 1st, 2nd and 5th Defendants
  3. Mr Okero for the 1st, 2nd and 5th Defendants

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George Maina Kabui & 5 Others V David Crispo Chigiti & 3 Others [2015] eKLR

Case Number: Civil Case 13 of 2014 Date Delivered: 24 Jul 2015

Judge: Robert Kipkoech Limo

Court: High Court at Kerugoya

Parties: George Maina Kabui, Kangara Mutugi Kamau , Perminus Mwangi Njuki , Lazarus Mugo Munyi , Emmanuel Gichira Njamumo & Charity Wambui Njamburi v David Crispo Chigiti,David Muriuki Migwi , Winnie Wambui Gachoki & Stephen Kabui Gachoki

Citation: George Maina Kabui & 5 Others V David Crispo Chigiti & 3 Others [2015] eKLR

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Tukero Ole Kina & Another V Tahir Sheikh Said (also Known As TSS) & 5 Others [2015] eKLR

Case Number: ELC Civil Case 219 of 2014 Date Delivered: 24 Jul 2015

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Tukero Ole Kina & another v Tahir Sheikh Said (also known as TSS) & 5 others

Citation: Tukero Ole Kina & Another V Tahir Sheikh Said (also Known As TSS) & 5 Others [2015] eKLR

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Fatuma Mkoba Faruma V Sayyeda Fahmeeda Begum & 5 Others [2015] eKLR

Case Number: ELC Civil Case 40 of 2012 Date Delivered: 24 Jul 2015

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Fatuma Mkoba Faruma v Sayyeda Fahmeeda Begum, Commissioner of Lands, Idi Hassan Mwachitu, Ali Hassan Nzimba, Rama Hassan Mangale & Mohamed Hassan Nzimba

Citation: Fatuma Mkoba Faruma V Sayyeda Fahmeeda Begum & 5 Others [2015] eKLR

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Nimrod Juniahs Mwang'ombe V Mwaro Baya & 9 Others [2015] eKLR

Case Number: Civil Case 1 of 2012 Date Delivered: 24 Jul 2015

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Nimrod Juniahs Mwang'ombe v Mwaro Baya, Choga Tsangwa, Pahe Galola Mwaroba, Betty Ndawa, Lulu Karioba, Santa Namani, Kai Jackson, Bakari Makorani Dhadhoh, Grace Mwarogo & Pantaleo Mwamburi

Citation: Nimrod Juniahs Mwang'ombe V Mwaro Baya & 9 Others [2015] eKLR

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Symon Thuo Muhia & Another V Housing Finance Company Of Kenya Ltd [2015] eKLR

Case Number: Civil Case 813 of 2002 Date Delivered: 23 Jul 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Symon Thuo Muhia & Mary Njoki Thuo v Housing Finance Company of Kenya Ltd

Citation: Symon Thuo Muhia & Another V Housing Finance Company Of Kenya Ltd [2015] eKLR

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