[2019] KEHC 8927 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 484 OF 2018

BETH WAMBUI MUGO.....................................................................PLAINTIFF/APPLICANT

-VERSUS-

CHARLES HORNSBY...........................................................1ST DEFENDANT/RESPONDENT

I.B. TAIRUS & CO. LTD......................................................2ND DEFENDANT/RESPONDENT

BETHWEL KIPLAGAT

MARGARET SHAVA

TECLA NAMACHANJA

AHMED SHEIKH

GETRUDE CHAWATAMA

PROF. RONALD SYLE

PROF. TOM OJIENDA (All being sued as former commissioners to the

Truth, Justice and Reconciliation Commission-TJRC)...3RD DEFENDANTS/RESPONDENTS

PRESTIGE BOOKSHOP........................................................4TH DEFENDANT/RESPONDENT

RULING

1. The plaintiff/application has filed an Originating Summonsdated 10thAugust, 2018. The application is supported by the grounds set out on the face thereof and the facts as deponed in the affidavit sworn by the plaintiff. The applicant is seeking the orders hereunder:

i. Spent.

ii. THAT the plaintiff be granted leave to commence legal action on defamation against the defendants out of time.

iii. THAT the plaintiff be granted leave to file and served the pleadings out of time.

iv. THAT costs of the application be in the cause.

2. The applicant avers in her affidavit that she came to learn of theexistence of a book authored by the 1stdefendant and titled “Kenya: A History since Independence” through her advocate on 5thAugust, 2013.

3. It is the applicant’s assertion that upon perusal of the saidbook, she discovered that some defamatory content had been published against her and that such content was applied by the 3rdrespondent in submitting a report.

4. The applicant deponed that she moved to challenge the findingsby the 3rdrespondent by way of a judicial review and a decisionwas entered in her favour on 17thFebruary, 2016.

5. That thereafter, she filed a defamation suit on 4th August, 2014and to which the respondents filed their respective statements of defence. The applicant stated that the suit was later struck out for being time-barred and the applicant believes that a reasonable cause of action exists and if denied the opportunity of pursuing her case, she stands to suffer grave injustice.

6. The 1st and 2nd respondents have responded by way of Groundsof Opposition arguing that the application is an abuse of the court process since the cause of action was heard and determined by a competent court.

7. The 3rd respondents similarly filed Grounds of Oppositiontogether with a replying affidavit sworn by Prof. Tom Ojienda to the effect that this court lacks the jurisdiction to extend time or grant leave to file a suit out of time since a suit premised on the same cause of action was struck out and the matter isres judicata.

8. In his replying affidavit on behalf of the 4th respondent, AhmedMohsinrecapped the averments made by the 3rdrespondents.

9. Parties were allowed to written submissions to dispose of theapplication. In her submissions, the applicant heavily relied on Sections 27 and 28 of the Limitation of Actions Act in seeking an extension of time on the basis that she only came to learn about the existence of the book containing the defamatory content at a later date.

10. The 1st and 2nd respondents in resistance thereto submittedthat Sections 27 and 28 relied upon by the applicant cannot apply since the claim is not premised on either of the causes of action stipulated therein; reference was made to various judicial authorities. The said respondents emphatically submitted that a previous suit constituting the same subject matter was struck out for being time barred hence the applicant has no basis on which to file a similar suit.

11. On their part, the 3rd respondents contended that the court’spower to extend time under Section 28 of the Limitation of Actions Act is a jurisdictional rather than a discretionary power, reiterating that the application is an abuse of the court process since it is aimed at initiating litigation based on a cause of action which was determined.

12. The 4th respondent’s submissions by and large echoed thesentiments of its counterparts.

13. I have considered the grounds set out on the face of theapplication and the facts deponed in the affidavits filed in support and against the originating summons plus the rival submissions and the authorities cited. The dispute is premised on the content published in a book authored by the 1strespondent and titled“Kenya: A History since Independence.”Therein, reference is made to the applicant’s close ties to the renowned Kenyatta family and her involvement in a gemstone business in addition to other alleged benefits during the reign of the late President Jomo Kenyatta. The applicant has claimed that the words therein were applied in a defamatory manner.

14. In returning to the Originating Summons, I wish to first addressthe applicability of Sections 27 and 28 of the Limitation of Actions Act. A keen reading of the said provisions reveals that an extension of time to file an action out of time can only be sought in strict instances of tort and more specifically, in an action for negligence, nuisance or a breach of duty.

15. The action herein is defamatory in nature, meaning thatwhereas it is a tort, it does not fall in either of the categories stipulated hereinabove. In the premises, I am persuaded by the arguments articulated by the respondents that Sections 27 and 28 of the Limitation of Actions Act do not incorporate the extension of time in defamation claims. This court in case ofDr. Lucas Ndungu Munyua v Royal Media Services Limited & another [2014] eKLRinter alia that an application seeking for extension of time on the premise of a defamatory claim cannot be brought under Sections 27 and 28 of the Limitation of Actions Act.

16. It therefore follows that whereas in ordinary circumstances, acourt is bestowed with the discretion to allow or deny an extension of time, the case is different when it comes to claims of a defamatory nature as these are strictly statutorily barred and offer no room for extension.

17. Having established the above, I now turn to address thequestion as to whether or not theres judicatarule would applyby virtue of the fact that the suit was struck out and notdismissed.

18. In answer thereto, one must seek to determine whether or notthe issues raised before the court were raised previously and determined exhaustively. In answer thereto, I make reference to the ruling delivered by my sister, Honourable Lady Justice Njuguna on 31stJuly, 2017 wherein she struck out the suit for being time barred.

19. I also observed that whereas the applicant had previously filed asimilar defamatory claim, the issues before the Honourable Judge were brought out vide applications filed by the respective respondents seeking to have the suit struck out against them for being statute barred. At no point did the said judge address the merits of the suit but limited herself to the issue raised by the parties. In my view, the application currently before this court is for leave to file the suit out of time and though related to the facts articulated by the parties in the earlier instance, the issues arising therefrom are not substantially one and the same.

20. The upshot is that the Originating Summons is herebydismissed for being without merit. The respondents shall havethe costs of the originating summons.

Dated, Signed and Delivered at Nairobi this 27th day of March, 2019.

..........................

J.K. SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff/Applicant

……………………………. for the 1st and 2nd Defendants/Respondents

……………………………. for the 3rd Defendant/Respondent

……………………………. for the 4th Defendant/Respondent