[2001] KEHC 638 (KLR)
The court found that the contents of the letter dated 14.4.99 did not, on their face, amount to libel and did not refer to the plaintiff as the person to whom the plot had been allocated. The court held that the burden of proving that the letter was libelous, referred to the plaintiff, and carried the alleged...
Source-derived case information.
- Citation
- [2001] KEHC 638 (KLR)
- Parties
- Plaintiff: Joseph Rading Wasambo; Defendant: Municipal Council of Kisumu; Defendant: Another (2nd Defendant, Town Clerk – Kisumu Municipal Council)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1527 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- application dismissed
- Judges
- AM Githinji
- Legal Topics
- Defamation, Libel, Pleadings Striking Out, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Rading Wasambo
Plaintiff
Municipal Council of Kisumu
Defendant
Another (2nd Defendant, Town Clerk – Kisumu Municipal Council)
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendants should be struck out as scandalous, frivolous, vexatious, or an abuse of the court process.
- 2 Whether the letter dated 14.4.99 constitutes libel against the plaintiff.
- 3 Whether the contents of the letter refer to the plaintiff and are defamatory.
Ratio Decidendi
The court found that the contents of the letter dated 14.4.99 did not, on their face, amount to libel and did not refer to the plaintiff as the person to whom the plot had been allocated. The court held that the burden of proving that the letter was libelous, referred to the plaintiff, and carried the alleged innuendos lay with the plaintiff, and such matters could only be determined at the hearing of the suit. The application to strike out the defence was therefore misconceived, as the issues raised required evidence and could not be resolved at the interlocutory stage. The court dismissed the application with costs to the defendants, except for the costs of attendance on the hearing...
Court Disposition
application dismissed
Orders
- The plaintiff's application to strike out the defence is dismissed.
- Costs awarded to the defendants, except for the costs of attendance on 19.2.2001.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 1527 OF 1999
JOSEPH RADING WASAMBO ………………………. PLAINTIFF
VERSUS
MUNICIPAL COUNCIL OF
KISUMU & ANOTHER ………………………………. DEFENDANT
RULING
This is the plaintiffs application under Order VI Rule 13(1), (b) (c) and (d) Civil Procedure Rules and S. 3A Civil Procedure Act for an order that the defendants defence be struck out as it is an abuse of the process of the court, scandalous, frivoulous and vexatious.
Plaintiffs claims damages for libel contained in a letter dated 14. 4.99 and reproduced in paragraph 5 of the plaint. That letter is written by 2nd defendant for Town Clerk – Kisumu Municipal Council and is addressed to the Commissioner of Lands. I reproduce the relevant part below:-
“ALIENATION ATION OF PARCEL NO. KSM MUNI. BLOCK 3/101”.
On 19th January 1999, we wrote to the District Land Registrar placing general restriction of caution on some of our property one amongst them KSM.MUNI BLOCK 3/101. This is our former slaughter house. We have been informed that the property was alienated and lease certificate issued on 28th January 1998 to Messrs Abdul Dhanji & Noorez Shamji.
Since the council still has interest on the property, and at no time in the past has there been a resolution to dispose of it, we shall be grateful to know. If any instrument, comment were ever produced from the council to enable the alienation. In the meantime we are placing by a copy of this letter a caution/restriction on the property pending further clarifications.
Plaintiff shows the natural and ordinary meaning of the words in para 7 of the plaint. He pleads in para 8 that the letter was false, malicious and defamatory and that defendants were actuated by malice and spite.
In para 3 of the defence defendant deny that the letter was false or malicious. They also deny that the letter was written of the plaintiff. Para 3 of the defence states further:
The defendants jointly and severally state that the total contend and substance of the said letter does not in any way refer to the plaintiff and does not in either its literal or implied meaning contain any defamatory words, phrases and or sentence as alleged or at all. The defendants jointly and severally state that the said letter similar sets out a set of facts on the basis of which they were making an official inquiry and accordingly the contents are justified and factual”
From the supporting affidavit and applicant’s counsels submissions it appears that the application is mainly based on the ground that Plot No. KISUMU/MUNI/BLOCK 3/101 was initially owned by the Government and not Kisumu Municipal Council. That may be so but the 2nd respondent was asserting in the letter complained of that the plot housed the former slaughter house of the first respondent and that the plot was alienated without a resolution of the first respondent whether or not the plot originally belonged to the first respondent is a matter of evidence. In any case the suit is not about the ownership of the plot.
The real issue is whether the contents the letter dated 14. 4.99 amount to a libel. The contents of the letter do not on the face of it amount to libel. The letter does not say the things contained complained of in para 7 of the plaint and does not on the face of it show any malice. It does not refer to plaintiff as the person to whom the plot had been allocated.
Plaintiff says in para 3 of the reply to the defence that the letter impliedly referred to plaintiff and was false and thick with innuendos. The burden of proofing that the letter is libelous: that it referred to the plaintiff and that it carries the innuendos attributed to it lies with the plaintiff. He can only prove the falsity of the letter and the innuendos at the hearing of the suit.
From the nature of the suit, I am convinced that the present application is grossly misconceived and should not have been filed. Defendants filed grounds of opposition though defendants counsel did not attend the hearing. The defendants are therefore entitled to costs over than the costs of attendance for hearing on 19. 2.2001
For those reasons I dismiss the application with costs to the defendants other than the costs of 19. 2.2001.
E.M GITHINJI
JUDGE
21. 1.1001
Mr. Thangei for applicant present