[2022] KEHC 9836 (KLR)

Jaffer v Standard Group Ltd & another (Civil Case E101 of 2020) [2022] KEHC 9836 (KLR) (Civ) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9836 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E101 of 2020

JN Mulwa, J

July 14, 2022

Between

Mohamed Husein Jaffer

Plaintiff

and

Standard Group Ltd

1st Defendant

Willis Oketch

2nd Defendant

Ruling

1. By a plaint dated 1/9/2020, the plaintiff instituted this suit against both defendants for alleged defamation by printing and distributing an article which the plaintiff thinks is defamatory on her character and reputation. The 1st Defendant is sued as the owner, and managed printed and distributed the Standard Newspaper while the 2nd Defendant is sued as the writer and or reporter of the 1st Defendant.

2. By an application dated 6/4/2021, the Defendant sought orders that:1)The court be pleased to strike out the suit as against the 2nd Defendant.2)The court be pleased to strike out the name of the 2nd Respondent from the suit.

3. Upon grounds stated on the face of the application that the 2nd Defendant is an employee and or agent of the 1st Defendant, that he is not the publisher of the Standard Newspaper and that the plaintiff does not disclose any reasonable cause of action against the 2nd Defendant.

4. In response, the Respondent/Plaintiff filed grounds of opposition and submissions dated 27/10/2021.

5. I have considered the parties submissions as filed and the grounds of opposition.

6. For the Respondent (plaintiff in the suit), it is submitted that in defamatory suits, a corporate on its own cannot commit the tort of defamation, and in respect of newspapers, libel is shared jointly and severally by all defendants, and such parties are established on necessary parties.

7. It is also submitted that defamation against newspapers, tortious liability is not specific but also shared. Citing Order 1 Rule 3 of the Civil Procedure Rules (CPR), and order 1 Rule 10(2) thereof, it is submitted that a party ought not be struck out of a suit where it has been shown that he or she is a necessary party to the suit and where a reasonable cause of action has been disclosed against him or her. Several cases are cited to support its case; Green Square Limited vs Sheladia Associates and 2 others [2017] eKLR, Mose Onchawani vs Kenya Oil Company Limited & another [2018] e KLR

8. The Respondent thus urges that it would be against the interest of justice to expunge the 2nd Applicant/Defendant from the suit as that would prejudice the Respondents case.

9. The Applicant has not filed its submissions despite having been given a chance to file, within 7 days, on the 7/6/2022. I shall however consider the grounds upon which the application is based.

10. Order 1 rule 3 of the Civil Procedure Rule provides that;“the court may at any state of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any party improperly joined, whether as plaintiff or defendant, be struck out and the name of any person who ought to have been joined, whether as plaintiff or defendant, or whom presence before the court may be necessary in court to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

11. By the above provision, it is clear that if a party is improperly joined in a case, and it is shown that it is not a necessary party, the court may strike the party from the suit upon application. The same provisions are repeated under Order 1 Rule 10(2) Civil Procedure Rule, to the effect that the court may order removal of a party in a suit whose presece therein is not necessary, to enable the court to effectually and completely adjudicate upon and settle all questions in the suit.

12. Is the 2nd Defendant a necessary party in the suit? The court in the case Green Square Limited (Supra) rendered itself thus:“What makes a person a necessary party is not merely that he has relevant evidence to give, on some questions involved, or that he has an interest in the outcome, but one who should be bound by the result of the case and the question to be settled and therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.”

13. In the matter of defamation by libel, a party who writes the article is a necessary party as he is the one who would offer an explanation as to the source of the news article and further upon his interrogation, decide whether it is an article (news) worth to be put forth for publication. He is therefore one of those who takes part in the publishing or procuring the offensive publication.

14. The above holding was ably captured by the court in the case Mose Onchwani vs Kenya Oil co. Limited & another [2018] e KLR, as well as in Grace Wangui Ngenye vs Chris Kimbi & Capital Group Limited (Civil Appeal No. 40/2020) where the courts held that the proper persons to be sued in a defamation suit is the person who published the defamatory words or caused them to be published or ratified the publication.

15. To that extent then, it is save to state that every person who takes part in or procures the publication is prima facie liable jointly and severally for damages caused. All such persons, be they the proprietor, editor, printer, publisher are all jointly and severally necessary parties in the suit.

16. Accordingly, I find no merit in the application by the 2nd defendant dated 6/4/2021. It is dismissed with costs.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 14TH DAY OF JULY 2022. J. N. MULWAJUDGE