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|Case Number:||Civil Case 124 of 2011|
|Parties:||BASIL CRITICOS v THE STANDARD GROUP LIMITED & EVERLYN KWAMBOKA|
|Date Delivered:||16 Nov 2011|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Kalpana Hasmukhrai Rawal|
|Citation:||BASIL CRITICOS v THE STANDARD GROUP LIMITED & Another  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
AT MILIMANI LAW COURTS
CIVIL CASE NO. 124 OF 2011
The application dated 25th May 2011 is premised under Order 2 Rule 15(1) (b), (c) and (d) of Civil Procedure Rules 2010 and Section 1A,1B and 3A of Civil Procedure Act. It seeks the prayer that the Defence dated 3rd May 2011 be struck out.
It is alleged that the publication is defamatory of the Plaintiff and that the order of Hon. Sitati J. did not mention the Plaintiff at all. I may even cite the Order dated 29th March 2010 made by the Court on the Summons filed by a beneficiary in Succession Cause No. 1304/2007.
The supporting affidavit to the said application mentions that the Plaintiff’s close relatives are the shareholders and directors of one Kirwan Associates Limited in whose name the property in issue was transferred by the Deceased in the referred Succession Cause. The sale was challenged in the said application on the ground inter alia that the deceased’s signature on the sale documents was found to be a forgery.
From the above facts it is contended by the Applicant that:
It is further submitted that for the defence of privilege to apply the matters published must strictly confine to the actual proceedings in court and must not contain any defamatory observations or comments from any quarter.
The Applicant relied on the observations made by the High Court in the case of George Odinga Oraro V The Standard Limited  eKLR. It is true that the facts of the said case are very similar to the present case where the admitted publication by the media house was on the proceedings of the Select Committee. The defence raised similar issue of qualified privilege under Section 7 (1) of the Defamation Act (cap 36) and the court had observed:
Before I dwell on the response from the Respondent, it may be opportune to reproduce the publication, as in my view the court is obligated to look closely into all the pleadings and relevant facts before it. In the case of Gupta v. Continental Builders Ltd (1978) KLR 83 at 87, Madan JA (as then he was) Observed that “In any given case it is the duty of the court to examine with minute care the documents and facts laid before it.”
The publication stated as under:-
The Defendants submitted that said words of the above publication constituted a fair and accurate report of the court proceedings brought against the Applicant and was published on an occasion of privilege and without malice towards the Applicant or without intention of injuring the Plaintiff/Applicant’s reputation and/or character.
I do note that the application in the aforementioned case had seven Respondents one of them being the Applicant who is shown to be the 1st Respondent. There are other three CRITICOS who are amongst the Respondents. The Applicant is mentioned in paragraph 5 of the supporting affidavit, in the said application in succession cause, as having deponed that the deceased in that cause had sold the property. This fact cannot be disputed similar is the case as regards the averment that her (the Deceased) signature in the sale document is found to be a forgery. I further note that the only place the Plaintiff has been described or specifically mentioned is the second paragraph of the publication which states that he is accused of selling the father’s property without the consent of family members. The mention of the “criticos” in other places could be attributed to other members of the family and I would refrain from making any further observations on that issue, at this stage.
In the premises aforesaid it shall not be justified to oust the Defendant from the seat of the litigation which action the court can undertake only in the clearest of the cases. I am aware that the court’s discretion is wide and unfettered but as per the well established principles of law, the court shall exercise the same Judiciously and with great caution. I shall only cite the following passage from the case of Industrial and Commercial Development Corporation V. Daber Enterprises Limited [Civil Appeal No 41 of 2000] wherein the court of appeal at page 8 had observed as follows:
I do tend to agree that this suit needs to go on full trial and thus I dismiss the application on hand with cost in the cause.