[2022] KEHC 11089 (KLR)

Amunze v Safaricom Kenya Limited (Civil Suit E004 of 2020) [2022] KEHC 11089 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11089 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Suit E004 of 2020

WM Musyoka, J

July 8, 2022

Between

Barasa Amunze

Plaintiff

and

Safaricom Kenya Limited

Defendant

Ruling

1. The Motion for determination is dated 9th April 2021, for the striking out of the plaint, dated 25th November 2020, on grounds that the claim founded on defamation was statute-barred, and the court had no jurisdiction to receive and determine it. It is brought at the instance of the defendant.

2. The plaintiff responded to the application by way of a replying affidavit. He avers that the suit is founded on defamation, breach of contract and exemplary damages. He avers that it is a continuous defamation, since the defendant had not stopped calling him Rachel.

3. The parties have filed written submissions.

4. Firstly, the application is predicated on Order 2 Rule 15(1)(a) of the Civil Procedure Rules, which provides that the court may, at any stage of the proceedings, order to be struck out or amended any pleading on the ground that it discloses no reasonable cause of action or defence in law. Under Order 2 Rules 15(2) no evidence is admissible on an application founded on Order 2 Rule 15(1)(a).

5. What Order 2 Rule 15(2) means is that the application premised on Order 2 Rule 15(2) should raise pure points of law, which require no evidence to support the grounds raised. That being the case, there should be no occasion for the respondent to that application to file an affidavit in response. Instead, the respondent should raise points of law in response.

6. Anyhow, the argument is that the suit herein, as framed, discloses no cause of action, particularly as it is founded on the tort of defamation known as slander.

7. According to the plaint, the incident which provoked the filing of the suit happened on 11th December 2018, when the plaintiff allegedly visited the defendant’s Customer Care Centre at Kakamega, and was told things publicly in a manner that embarrassed him in the presence of those who were present. Paragraph 12 of the plaint pleads that the manner he was handled on 11th December 2018 injured his reputation before members of the public. Clearly, the tort of defamation on which he hinges his claim is slander, the spoken defamation as opposed to libel, the written one.

8. According to section 4(2) of the Limitation of Actions Act, Cap 22, Laws of Kenya, an action for libel or slander may not be brought after the end of twelve months from the date when it occurred or when the offending words were uttered. The date in the plaint is 11th December 2018. The suit herein was filed on 26th November 2020. That would be 2 years and 2 months from the date the offending words were allegedly uttered. The suit should have been filed on or by 11th December 2019. The suit is, therefore, stale by 1 year and 2 months.

9. The plaintiff claims that the slander is continuous. Slander related to spoken words. There is nothing in the plaint to reflect continuous slander. If what he means by continuous, is the alleged being referred to as Rachel, he has not pleaded, in his plaint, how the reference to him as Rachel is defamatory. In any event, that reference is allegedly addressed to him through his mobile telephone number, and, therefore, there is no publication of the same. Yet publication is a critical component of defamation.

10. He avers that he also claims damages for breach of contract, yet he has not pleaded the terms of the contract that he alleges was breached. There is no indication of when and where the context was entered into, and the nature of breach alleged, and the nature of damage he had suffered as a result. He also says that he founds his claim on exemplary damages, yet this is not a tort, but a remedy.

11. Overall, the plaint, dated 25th November 2020, is so poorly drafted that it presents no cause of action, and it embarrasses the defendant, in terms of the defence the defendant has to draft to answer to the vague and spurious claims set out in the said plaint.

12. Under ORder 2 Rule 15(1)(a), the discretion given to the court is to either strike out the pleading or to allow for its amendment. Striking out is drastic and draconian. It drives out the party from the seat of justice. In the defence of 12th August 2021, the defendant, at paragraph 9, pleaded that it would, at the opportune time, apply to have the suit dismissed for being statute-barred. That should have been adequate warning to the plaintiff that there were serious flaws in its pleadings; and the plaintiff ought to have taken the cue and moved to amend its documents. The Motion, dated 9th November 2021, was filed herein on 18th November 2021. That, again, was a wakeup call to the plaintiff. He took no heed. He could have sought to amend his pleadings, but he did not. In his replying affidavit, of 7th January 2022, he makes no plea to be allowed to amend his plaint, so that it can disclose a cause of action. I shall, therefore, not exercise discretion to allow amendment of the plaint, instead I shall order its striking out.

13. The final order is that the Motion, dated 9th November 2021, is hereby allowed as prayed. It is so ordered.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 8th DAY OF JULY 2022W.M. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Manyoni instructed by Momanyi Manyoni & Company Advocates for the plaintiff.Mr. Luseno, instructed by Majanja Luseno & Company, Advocates for the defendant