[2004] KEHC 1568 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 1247 OF 2002

EVELYN KILI MBULU …………………………….…… PLAINTIFF

VERSUS

LERESIAN B. LESIYAMPE & ANOTHER ……….. DEFENDANT

R U L I N G

The Defendants have moved the court by a chamber summons dated 6th January 2003, for orders to strike out the Plaint and the Reply to Defence. The application is made pursuant to the provisions of Order 6 rules 3, 6, 13 (1) and 16 of the Civil Procedure Rules.

It is the Defendants’ contention that the Plaint does not disclose a cause of action against the Defendants’ since it is not alleged that the letter in issue was published to anyone, nor does it identify anyone to whom it was alleged to have been published. The Defendants further contend that the Reply to Defence attempts to raise new grounds of claim, which are inconsistent with the Plaint.

In accordance with the provisions of Order 6 rule 13 (2), the Defendants did not file any evidence in support of the application. The determination of the application will therefore rest upon the perusal and analysis of the Plaint and the law applicable to Pleadings.

In his submissions, Mr. Gitonga Advocate for the Defendant drew my attention to paragraph 4 of the Plaint. The pertinent parts of the said paragraph reads as follows;

“On 26. 7.2001, the 1st Defendant in the course of his employment with the 2nd Defendant, wrote and published a letter addressed to the Plaintiff containing the following defamatory contents …”

It was pointed out by the Defendants that the above-cited pleading did not contain particulars of any person to whom the alleged defamation was published. For that reason, the Defendants submit that the Plaint does not disclose any cause of action.

The provisions of Order VI rule 6A spell out the particulars that need to be pleaded in defamation cases.

Examples of such particulars are innuendos, (in cases where the words complained of are said to have meanings other than their ordinary meanings); particulars of facts and matters from which malice is to be inferred etc. That rule does not have in its list, a requirement that disclosure be made of the identity of the person(s) to whom the alleged defamatory material was published. Whereas, I am not suggesting that the provisions of Order VI rule 6A has set out a comprehensive list of everything that should be incorporated into pleadings in defamation cases, I do nonetheless believe that it is the starting point.

Gatley on Libel and Slander, 9th Edition, states at paragraph 1. 3 that

“Defamation is committed when the defendant publishes to a third person words or matter containing an untrue imputation against the reputation of the Plaintiff”.

The learned authors of that treatise have correctly stated the legal position. I would therefore readily strike out a plaint which is founded on the tort of defamation if the said Plaint did not contain an averment that the words or matter complained of had been published. However, in this case, paragraph 4 of the Plaint does contain an express averment that the 1st Defendant wrote and published the letter containing the words complained about. I hold that the said pleading is sufficient to found a cause of action. Of course, the Plaintiff could have indicated the person(s) to whom the letter was published, if she knew him/them. But the said omission cannot be fatal in my considered view. In arriving at this conclusion, I have given consideration to the fact that in many instances, defamation cases are actually directed at publishers of newspapers, radio and television stations and bookshops.

In such cases, the Plaintiff would normally assume that the newspapers were published to the numerous people who would ordinarily buy and read the same. In the case of radio and television stations, the assumption is that the publication would have been to the listeners; whilst in the case of bookshops, again there is an assumption that the books or magazines etc would have been bought and read by people, who the Plaintiff would most probably not be able to identify at the time he was putting together his Plaint. In my view, the Plaintiff’s case could only fail if at the trial, she was unable to adduce evidence of publication. But it would be wrong to strike out the Plaint as not disclosing a cause of action on the grounds that the Plaint had not disclosed the identity of the person to whom the words complained of had been published.

It is to be noted that inHCCC No. 1352 of 1995 Sabina Oyatsi V Bata Shoe Company Kenya Limited, Mbogholi Msagha J. held that particulars of the party to whom the slander was uttered must be supplied. If that ruling is read on the face of it, it might be thought to support the view expressed by the defendant in this case. However, in reality it does not. The ruling needs to be put in its proper perspective, so as to bring out its proper meaning. First, it must be noted that although the case title is cited as if it was a civil suit that was being handled by the Judge, the truth is that the case was at the stage of an appeal. The said appeal was against the decision of the Deputy Registrar, who had dismissed the appellant’s application for particulars. It is in that context that Mbogholi Msagha J. correctly held that the Deputy Registrar was wrong in law, for dismissing the appellant’s application for particulars.

I hold that if the Defendants feel that the Plaintiff ought to disclose the person(s) to whom the defamatory letter was published, they should apply for particulars. That would be the case, even if the defendant were to prove that there was a legal requirement that the Plaintiff should identify the person(s) to whom the letter was published. I am fortified in my decision by the following words, which are derived from paragraph 18/19/13 of the “Supreme Court Practice, 1999” Vol. 1;

“Where a pleading is defective only in not containing particulars to which the other side is entitled, application should be made for particulars under rule 12, and not for an order to strike out the pleading under this rule.

Even a serious want of particularity in a pleading may not justify striking out if (1) the defect can be remedied, and (2) the defect is not the result of a blatant disregard of court orders”.

I therefore decline to strike out the Plaint.

The other issue raised by the Defendants is that the Reply to Defence should be struck out. It is contended that the Reply to Defence offends the provisions of Order 6 rule 6 (1) of the Civil Procedure Rules. The provision reads as follows;

“No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit”.

To illustrate the new matter first raised in the Reply to Defence, the Defendant points out that by paragraphs 4, 5, 6 and 7 of the Plaint, the Plaintiff makes blanket statements that the letter in issue was published.

The particulars of the matters complained of were not specified, save for the wording of the letter dated 26/7/2001. After the Defence was filed and served on the Plaintiff, she filed a Reply to the said Defence, and introduced particulars of malice.

It is the Defendant’s submission that by introducing these particulars in the Reply to Defence, the Plaintiff had effectively introduced a new ground of claim that was inconsistent with what had been set out in the Plaint.

In Herbert V Vanshan [1972] 3 A11 E R 122, at 122, Goff J. held that;

“Anything is legitimate which adds to, qualifies, or explains the allegations of the defence, unless it is shown to be wholly irrelevant. When the rules were prepared, the view was taken that after defence new matter should generally be introduced by way of amendment, and that is, in my opinion, the more consistent course”.

Applying the foregoing dicta to this case, I note that the Plaintiff did assert (at paragraph 8 of the Plaint) that the publication of the defamatory letter was malicious.

In their Defence, the Defendants assert that the letter in issue was written in circumstances of qualified privileged. The Defence goes on to state that the main reason for writing the contentions paragraph in the letter, was to call upon the Plaintiff to explain her conduct, as is the right and duty of any employer. It is in those circumstances that the Plaintiff sets out, in her Reply to Defence, to deny the Defence of qualified privilege; and to explain why, in her assessment, the letter as actuated by malice.

To my mind the said Reply to Defence would appear to do no more than to add to, qualify or explain the allegations in the Defence. I do not think that the Plaintiff can be faulted for doing so. Indeed, I think that it was incumbent upon the Plaintiff to respond in the manner in which she did. I think that the provisions of Order VI rule 6A (3) are very instructive in that regard. The said provisions state as follows;

“Where in an action for libel or slander the Plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his plaint give particulars of the facts on which he relies in support of the allegation of malice;

but if the defendant pleads that any of those words or matters were fair comment on a matter of public interest or were published upon a privileged occasion and the Plaintiff intends to allege that the defendant was actuated by express malice, he shall file a reply giving particulars of the facts and matters from which the malice is to be inferred”.

This rule makes it clear that the Plaint did not need to give particulars of the facts on which the Plaintiff relied in support of his allegation of malice, even though the Plaintiff was alleging that the defendant maliciously published the letter in issue. But the moment the Defendant pleaded qualified privilege, the Plaintiff was obliged to file a reply giving particulars of the facts and matters from which the malice is to be inferred. In effect, by its Defence of qualified privilege, the Defendants actually invited upon themselves the very Reply to Defence about which they are now complaining.

The Reply to Defence will therefore not be struck out.

Instead, the application dated 6th January 2003 is dismissed with costs.

Dated at Nairobi this 15th day of April 2004.

FRED A. OCHIENG

Ag. JUDGE