[1998] KECA 46 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OMOLO, AKIWUMI & BOSIRE, JJ.A.)

CIVIL APPEAL NO. 179 OF 1997

BETWEEN

J.P MACHIRAT/A MACHIRA &

COMPANY ADVOCATES......................................... APPELLANT

AND

WANGETHI MWANGI ......................................1ST RESPONDENT

NATION NEWSPAPERS.................................... 2ND RESPONDENT

(Appeal from the order and ruling of the High Court of Kenya at Nairobi (Mbogholi Msagha J) dated 29th May 1997

in

H.C.C.C. NO. 1709 OF 1996)

********************

JUDGMENT OF OMOLO, J.A.

Mr. J.P. Machira, the appellant before us, is an advocate of the High Court of Kenya. I think Mr. Machira is the kind of advocate to whom our newspapers, perhaps in happier circumstances, would refer as "a prominent Nairobi lawyer." By a plaint dated the 11th July 1996, the appellant sued Mr. Wangethi Mwangi as the first defendant and Nation Newspapers Limited as the second defendant. The appellant claimed from them, jointly and severally:-

(a) an order that the defendants do make a full and unqualified apology? make amends, withdraw certain remarks and statements made and published by the Defendants against the appellant and that such apology, amends and withdrawal be given the widest possible circulation similar to the one given to the remarks and statement the appellant complained about;

and

(b) general and aggravated damages for defamation.

There were other claims for costs, interest and so on.

How did these claims arise?

Mr. Wangethi Mwangi is the Group Managing Editor of Nation Newspapers Limited while the latter is the proprietor and publisher of two newspapers, the Daily Nation and the Taifa Leo. I take it that the Taifa Leo is the Swahili equivalent of the Daily Nation.

I shall hereinafter refer to Mr. Mwangi as the “1st respondent” and Nation Newspapers Limited as the “2nd respondent”.On the 10th November, 1996, both the Daily Nation and the Taifa Leo published on their front pages a photograph of the appellant and a belligerent-looking lady holding the appellant with his shirt collar. Below the photograph was an explanation and the Daily Nation explanation went like this:-

“Obviously, Ms Grace Wahu Njoroge was not happy with her lawyer, Mr. J.P. Machira, after they walked out of the High Court yesterday and she expressed this by grabbing his collar. The quarrel was reportedly over some money. The two were later escorted to the KICC Police Post. See story on page 5. (Picture by NICHOLAS RUKUNYA).”

The story at page 5 was written by one ADIERI MULAA and was under the title “ANGRY WOMAN GRABS LAWYER”. It ran thus:-

“An elderly woman caused a stir at the Nairobi Law Courts when she grabbed a lawyer by his shirt collar after a disagreement over money.

A yelling Grace Wahu Njoroge confronted Mr. J.P. Machira in the court corridors.

The incident attracted judiciary officials, lawyers and members of the public who watched in bewilderment.

Mr. Machira made a futile move to escape by dodging the woman in the corridors as he moved from office to office.

However, she pursued him through the eastern gate at the law courts.

The lawyer later showed reporters documents on a land sale agreement indicating that some land in Kajiado was to be purchased by Kangemi Unyitaniri Women's Company.

According to the sale agreement, the company million was to buy the land for Shs. 2. 7million but could not pay the whole amount within the agreed time. The group only raised the down payment of Shs. 1. 5 million.

In the new sale, agreement with Ms Njoroge dated September 12 last year, the purchase price was raised to Shs. 3. 5 million with conditions that the interest rate would be at 28 per cent.

Out of this money, Ms Njoroge was supposed to refund the Shs. 1. 5 million paid by the company as downpayment in the earlier agreement.

She was to pay Mr. Machira's advocates Shs. 2 million to complete the land sale transaction.

One of the conditions was that Mr. Machira would not release any documents to Ms Njoroge until the Shs. 2 million was paid to his advocates.

The agreement was signed by both parties in the presence of Mr. S. Kimondo Mubea for Mr. Machira and S.N. Waruhiu for Ms Njoroge.

The incident sparked off confusion causing security personnel at the law courts to close the gate holding back the advocate.

Police officers moved in and escorted the two to KICC Police Post and later to Central Police Station where Mr. Machira reportedly recorded a statement”

The explanation of the photograph in the Taifa Leo, if in a more poetic use of language, was to the same effect.

The appellant claimed in his plaint that the photograph, the caption under it and the story at page 5 of the newspapers were, taken together, libellous of him in that he was portrayed as a dishonest advocate being assaulted by his client, Ms Grace Wahu Njoroge and that the said assault was over money. The appellant asserted in his plaint that all this was false because the dispute between him and Ms Njoroge was not over money but over some sale, agreement of land between the appellant and Ms. Njoroge and Ms. Njoroge was certainly not the appellant's client. The appellant alleged further that either he himself or his agent, or himself with his agent visited the offices of the respondents during the evening preceding the publication of the story, that he made available to the respondents documents showing the true position between him and Ms. Njoroge and that from the documents made available to the respondents, they (respondents) must have known or ought to have known that Ms. Njoroge was not his client. The appellant denied that the respondents had any form of privilege to publish what they did but further contended that even if the respondents had such privilege, the privilege had been destroyed by malice on the part of the respondents, which malice was to be inferred from the circumstance that the respondents had in their possession documents showing the correct position between him (appellant) and Ms Njoroge but that in spite of that the respondents still went ahead to call Ms Njoroge his client and to assert that the dispute was over money. I think it is trite law, and I must state it here and now, that qualified privilege can be destroyed by malice whether express or implied. In MANGAT v SHARMA [1968] EA 620, the court found as a fact that the two letters complained of in the suit, and which were admittedly defamatory, were written on an occasion of qualified privilege. The remaining question was whether the defendant had acted with malice and Chief Justice Georges of the High Court of Tanzania held that:-

“the defendant had abused the privileged occasion, that is, had not used the occasion honestly and so had lost the protection of qualified privilege.”

MANGAT'S case, supra, was cited with approval in the case of KITTO v CHADWICK & ANOTHER [1975] E.A 141, which was one of the cases cited to us. Delivering the first judgment of the Court of Appeal for East Africa, in the latter case, Law, Ag. V-P, stated as follows at page 145, letters A to C:-

“................But if the writer makes a statement, induced by anger or other indirect motive, in reckless disregard whether it is true or false that is an abuse of the privileged occasion and disentitles him from protection, see MANGAT v SHARMA [1968] EA 620. The use of violent language, or the making of untrue allegations, may be evidence of malice, but as was said in SHAH v UGANDA ARGUS [1972] EA ,80, there must be extremely strong and entirely disproportionate language to displace the presumption of innocence in a matter which concerns qualified privilege.”

The appellant in the present appeal did not complain about the use of violent language but rather, he complained about “the making of untrue allegations” when it was known or ought to have been known that the allegations were untrue. Not only did the appellant allege that the allegations made by the respondents were untrue; the appellant further alleged that the allegations were untrue to the knowledge of the respondents. Thus, it was pleaded in paragraph 7 of the plaint:-

“7. The above complained of statement and publication was published despite the fact that on the evening of 9th November, 1995, the plaintiff and another lawyer had presented to the Defendants' Reporters the true factual position and furnished them with documents to verify the same at the Defendants' Offices.”

To the allegations made against them by the appellant, the respondents filed a joint defence that was drawn up for them by M/s Archer & Wilcock Advocates of Nairobi. The defence had a total of fifteen paragraphs. In paragraph one, the respondents made the usual blanket denial of each and every allegation of fact made in the plaint save where admitted. In paragraph two, the description of the appellant was admitted; in paragraph three the description of the respondents was admitted save for the fact that the respondents were represented by their named advocates. In paragraph four it was admitted that the respondents published the words complained of in paragraph four of the plaint but the rest of the allegations made in the said paragraph were denied, particularly that the words were printed and published falsely and/or maliciously. In paragraph five it was admitted that the words stated in paragraph five of the plaint were published but the rest of the contents were denied, particularly that the words were printed and published falsely and/or maliciously. In paragraph six, it was admitted that the words stated in paragraph six of the plaint were published but the rest of the paragraph were denied, particularly that the words were printed and published falsely and/or maliciously. In paragraph seven of the defence, the contents of paragraph seven of the plaint were simply denied. Paragraph eight of the defence was divided into sub-paragraphs (a) to (d)and in each of them denials were made of malice or spite; of the falsity of the publication or its defamatory nature, that the appellant was injured by way of his profession as an advocate and at 8(d) it was pleaded in the alternative that what was published concerning the appellant was published under a sense of duty to the public, without malice towards the appellant and in the honest belief in the truth of information published. It was also pleaded that the matters published were of public concern and their publication was of benefit to the public. It was also alleged that the respondents would rely on section 7 and the Schedule to the Defamation Act. The other remaining six paragraphs were denials in similar vein to the first eight while the last paragraph was the usual admission that the High Court had jurisdiction to hear the case.

Faced with these very wide denials, it is not surprising that the appellant applied to the High Court by way of a chamber summons under Order VI Rule 13 (1) (b), (c) and (d)of the Civil Procedure Rules for two basic orders, namely that:-

“(1) The Defendant's Defence filed herein be struck out;

and

(2) The Plaintiff's suit to proceed for formal proof.”

The application to strike out was also said to have been brought under section 3 A of the Civil Procedure Act, but I personally doubt very much whether a pleading could ever be struck out upon any other ground save for those specified under Order VI Rule 13 (1)of the Civil Procedure Rules. As has been repeatedly said with regard to section 3 A, the inherent jurisdiction conferred upon the High Court by that section is only to be invoked where there is no specific provision(s) dealing with the matter raised. Be that as it may the application to strike out the defence was supported by an affidavit sworn by the appellant and in that affidavit, the appellant explained how he had raised the matter with the respondents before coming to court, how he had given them documents to show that their publication was in fact false, how the respondents had themselves agreed and published a “Clarification” in their subsequent issue of November 18th, 1995 and in that “Clarification” the respondents had written as follows:-

“In our issue of November 10, we published a front page picture whose caption gave an impression that Ms Grace Wahu Njoroge was an unhappy client of lawyer J.P. Machira as a result of which she assaulted him. We have since confirmed that their relationship was that of vendor and buyer and there was no suit or case pending between them. We apologise for the wrong impression and any embarrassment caused by our report.”

The apology by Taifa Leo came much later on the 20th February 1996 and was, if anything, more explicit in its terms. It was headed "We Apologise" and went like this:-

“In our issue of November 10, we published a front page picture of lawyer J.P. Machira struggling with Ms Grace Wahu Njoroge and reported that the lady was complaining about some money which she alleged that she had given to the lawyer. We have since been informed that the dispute between them was that of vendor and purchaser and that the lawyer did not owe Ms Wahu any money. We take this opportunity to correct the said reporting and also apologise.”

If I understand the appellant’s case correctly, his contention in his application to strike out the defence was that even if the respondents, denials in their defence were to be held to be a sufficient traverse to the allegations made in the plaint, those denials could not possibly be sustained on the material that he placed before the superior court. The respondents had called Ms Grace Wahu Njoroge a client of the appellant. Ms Njoroge was not a client of the appellant and the respondents had accepted that position in their purported apology to the appellant. It was accordingly scandalous, frivolous and vexatious and an abuse of the process of the court for the respondents to insist in their statement of defence that Ms Njoroge was a client of the appellant. Again, the respondents had, in their offending publication, said that Ms Njoroge was fighting the appellant over some money. The appellant contended that that was false and in their purported apology to the appellant, the respondents had specifically acknowledged that the dispute between Ms Njoroge and the appellant was that of a vendor and purchaser. It was, accordingly, scandalous, frivolous and vexatious and an abuse of the process of the court for the respondents to insist in their statement of defence that Ms Njoroge fought the appellant over some money.

For my part, I have no hesitation whatsoever in agreeing with the appellant that even if the denials set up by the respondents were to be held to be a sufficient traverse of the allegations in the plaint the denials could not possibly be sustained were a trial on the merits to be held. The respondents have themselves agreed that Ms Njoroge was not the appellant's client. The respondents also agree that the dispute between her and the appellant was due to their relationship as vendor and purchaser. Naturally, money would be an issue in such a relationship but the respondents did not, either in their written statement of defence or in anything else, put forward any explanation as to why they had picked on the issue of money and made it the central issue of the dispute. I agree that disputes ought to be heard and determined on oral evidence in open court, but I would at the same time point out that there is no magic in the act of holding a trial and receiving oral evidence; in other words a trial cannot be held merely because it is normal or usual to hold trials. A trial must be based on issues; otherwise, it would become a farce. Surely, it cannot require any evidence to prove that a lawyer would be hurt in his profession if it is alleged against him that he is being assaulted by his client over money. In my view, that was the substance of what the respondents conveyed by their front-page photograph of the appellant being collared by Ms Njoroge. By their apology or clarification, which I have already set out the respondents, admitted that that impression was wrong, by, which I understand them to mean it was false. How can they then be allowed to deny the allegations to that effect made by the appellant in his plaint? Ms Janmohamed for the respondents referred us to the ruling of Ringera, J. in the case of DR. MURRAY WATSON V RENT-A-PLANE LTD & 2 OTHERSHCCC NO. 2180 OF 1994 (Unreported), in which that learned Judge attempted to explain what he thought would amount to a scandalous defence. The learned Judge is recorded as saying thus:-

“I next ask myself whether the amended plaint is scandalous. Now a pleading is not scandalous unless it alleges indecent, offensive or improper acts, omissions or motives against the adversary which are unnecessary in the proof of the action pleaded.”

While I would broadly agree with the Judge. I can find no warrant for restricting the meaning of the term scandalous to only that, which is indecent, offensive or improper. Surely if everybody who knows a man, including his parents know his names to be Tom Njuguna Onyango and when he is sued under those names he pleads "I deny that my names are Tom Njuguna Onyango", that kind of denial apart from being frivolous and vexatious, can also be properly described as scandalous. What I am saying is that the category of what may be described as scandalous cannot be limited to the indecent, the offensive or the improper. Denial of a well known fact can also be rightly described as scandalous. Even Ms Janmohamed eventually conceded that.

If these denials I have dealt with are unmaintainable on the material on record, what about the allegation of malice? The appellant contends that even on that issue, there can only be one answer even if a trial were to be held. The appellant placed before the superior court material to show that during the evening of 9th November 1995, he went to the offices of the respondents and gave the respondents documents, which showed to them the correct position between him and Ms Njoroge. I have already set out elsewhere in this judgment the report written by the respondent at page five of the issue in which the offending words were published.

That passage clearly says that later the same day of the dispute between the appellant and Ms Njoroge the appellant showed to reporter’s documents evidencing a sale agreement of some land in Kajiado. It is clear from the same report that from those documents it must have been plainly clear to the respondents that Ms Njoroge was not the appellant's client and that the dispute between them was primarily over the sale agreement. So that the respondents had in their possession documents showing, that Ms Njoroge was not a client of the appellant, that she was not assaulting the appellant over money but over a sale agreement that had gone sour. Yet with that information at their disposal, they chose to publish the remarks on their front page, which, as I have repeatedly stated, alleged that his client was assaulting the appellant over money. Malice, as I have said, can be inferred from a deliberate, reckless, or even negligent ignoring of facts and clearly, this is what the respondents were doing. As Akiwumi, J.A. rightly points out in his judgment, even in their apology, the respondents were not at all being truthful by alleging that:-

“We have since confirmed that their relationship was that of vendor and buyer and there was no suit or case pending between them..............”

The respondents must have confirmed or ought to have confirmed that position during the afternoon of 9th November 1995. Deliberate lies can also be evidence of malice. I agree with Mr. K'Owade for the appellant, that the material put before the learned Judge of the superior court clearly showed malice on the part of the respondents and no amount of oral evidence could ever change that position. Mr. Justice Msagha-Mbogholi who refused to strike out the defence said in his ruling that there existed some triable issues. The learned Judge, however, studiously avoided identifying even one single issue. In my view, and with respect to the learned Judge, there was not a single triable issue either on the pleadings or in the affidavit of the first respondent.

In the end, Ms Janmohamed pleaded with us that we give her leave to go and amend their defence and if I understood her correctly, the envisaged amendment would be to the effect that the photographs were published through an honest mistake. With respect to Ms Janmohamed, that position is equally untenable. As is perfectly clear from the correspondence on record, the respondents wrote various letters to the appellant before the suit was filed in court. In none of those, letters was the issue of an honest mistake in the publication ever raised. The first respondent swore an affidavit in reply to that of the appellant. He did not make any reference at all to an honest mistake alleged before us. I do not think the unfettered power in the courts to allow amendments at any stage is to be used to enable parties to create all sorts of fanciful defences in the course of litigation. Nor do I understand the decision of this Court, particularly that of Madan, J.A., as he then was, in the case of D.T. DOBIE & COMPANY (KENYA) LTD V JOSEPH MBARIA MUCHINA & ANOTHER, CivilAppeal No. 37 of 1978 (Unreported) to mean that no pleading could ever be struck out even where it is patently clear that no useful purpose could ever be served by a trial on the merits. If that were to be so, the provisions of Order VI Rule 13(1) and probably those of Order 35 Rule 1 of the Civil Procedure Rules would be rendered nugatory and there would be no need for their existence in our rule book. I agree that these powers are drastic and as the court said in the case of CHATTE V NATIONAL BANK OF KENYA LTD, CivilAppeal No. 50 of 1996 (Unreported), the powers are to be exercised with great caution and only in the clearest of cases. But once such caution has been exercised and it is perfectly clear that no useful purpose would be served by a trial on the merits, the court is perfectly entitled to strike out a pleading, for as I have said, there is no magic in holding a trial on the merits, particularly where it is obvious to everyone that no useful purpose would be served by it. Unlike the learned Judge of the superior court, I have without any hesitation, come to the conclusion that no triable issues are disclosed either in the defence of the respondents, in the replying affidavit of the first respondent or in anything that was said before us by Ms Janmohamed. Accordingly, no useful purpose would be served by holding a trial on the merits. That being my view of the matter, I would allow the appeal, set aside the order(s) made by the superior court and substitute them with one allowing the appellant's chamber summons, strike out the defence filed and enter interlocutory judgment for the appellant with a further order that the appellant be allowed to formally prove his claim. I would award the costs in the High Court and in this Court to the appellant. As Akiwumi and Bosire, JJ.A. agree, those shall be the orders of the Court.

Dated and delivered at Nairobi this 4th day of June, 1998.

R. S. C. OMOLO

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

JUDGE OF APPEAL

JUDGMENT OF AKIWUMI, J.A.

On 9th November 1995, the Appellant, J. P. Machira, Esq. a senior and Jell known Advocate of the High Court of Kenya, was involved in a physical altercation with one Grace Wahu Njoroge near the Eastern entrance to the Law Courts. The photographs that were taken of this incident show Ms. Njoroge holding the collar of the rather surprised Appellant and hurling what must be insults at him. These photographs were splashed the next day on the front pages of the widest circulating English newspaper in the country, the Daily Nation, and its Kiswahili counterpart, Taifa Leo, thus ensuring that even those who could not read English were not going to be deprived of this sensational scoop. The 1st Respondent is the Editor of both newspapers which are published by the 2nd Respondent.

The caption under the photograph in the Daily Nation was as follows:

“Obviously, Ms. Grace Wahu Njoroge was not happy with her lawyer, Mr. J. P. Machira, after they walked out of the High Court yesterday and she expressed this by grabbing his collar. The quarrel was over some money. The two were later escorted to the KICC police post. See story on page “, and to give credit where it is due, the following was added in parenthesis” (Picture by NICHOLAS RUKENYA)”.

A similar caption appeared under the photograph published in the Taifa Leo. At page 5 of the Daily Nation appeared an article by one Adieri Mulaa under the following bold headline "Angry woman grabs lawyer”. The article itself, contained the following excerpts:

“An elderly woman caused a stir at the Nairobi Law Courts when she grabbed a Lawyer by his shirt collar after a disagreement over money... Mr. Machira made a futile move to escape by dodging the woman in the corridors as he moved from office to office.”

Mr. Mulaa's article then concluded and highlighted as the caption under the photograph had, that;

“Police officers moved in and escorted the two to KICC Police post and later to Central Police Station where Mr. Machira reportedly recorded a statement”.

The entire publication would show to the ordinary man in the street that the Plaintiff in his professional capacity must have behaved disgracefully and even criminally against his client, which had led to his recording a statement at the Central Police Station. But the Appellant alleged that the publication was made with malice and spite which if established, would deny to the Respondents the defence of qualified privilege. The particulars of the Respondents' malice and spite apart from what I have already adverted to, were that in spite of the Appellant having taken the trouble before the publication of the defamatory matters to explain to the Respondents that there was no lawyer/client relationship between him and Ms. Njoroge and that he had not swindled her, the Respondents had gone ahead to publish the next day, the photographs and captions on the front pages of their newspapers and at page 5 of the Daily Nation, the defamatory matters complained of. Let me say right away, that although the article at page 5 of the Daily Nation did not specifically, state that Ms. Njoroge was a client of Mr. Machira, there was enough in that article including its headline and these sensational sentences:

“A yelling Grace Wahu Njoroge confronted Mr. Machira in the court corridors. The incident attracted judiciary officials, lawyers and members of the public who watched in bewilderment.”

apart from the caption under the photograph, which speaks, volumes, to suggest that such a relationship existed between them and further, that Ms Njoroge was accusing Mr. Machira of having cheated her financially.

The Respondents in their defence, merely denied the allegations that they had maliciously and spitefully published a defamatory matter about the Appellant. They also denied in paragraph 7 of their defence, and this is worth noting, that the Appellant and another lawyer had on the eve of the publication, presented the true facts and related documents to the Reporters of the Respondents. Subsequently, the 1st Respondent in paragraph 4 of his affidavit in support of the Respondents' objections to the Appellant's application in the superior court to strike out the Respondents' defence was, in an evasive manner, to admit that his Reporter Mr. Adieri Mulaa had been briefed by the Appellant about his side of the story. Whilst the 1st Respondent had in paragraph 3 of this affidavit which would also have been more credible if sworn to by his reporters, given a detailed account of what his reporters had told him and which he believed to be true, that they had been told that the Appellant was Ms. Njoroge's lawyer, he had obviously been less than candid in paragraph 4 of his affidavit where, suppressing what his reporters had been told by the Appellant or his representative, he merely said:

“That after the incident in the Court corridors a Plaintiff's representative, Mr. Thuita telephoned me in the evening and I immediately asked my reporter, Mr. Adieri Mulaa to speak to the Plaintiff and/or his representative. That resulted in the story on page 5”.

It seems to me that the photograph was such a scoop and of such a stark, dramatic and explosive nature that the Respondents were determined to publish it on the front page of the Daily Nation and with a caption that would lend credence to what, if one did not know the true facts, and this did not apply to the Respondents, the photograph portrayed; namely that a client was attacking her lawyer who had swindled her financially. I dare say, sensationalism may be permitted journalism, but deliberate and malicious suppression of information calculated to give a wrong impression is unacceptable.

The Appellant filed a Reply to the Respondents defence in which he reiterated what had been alleged in the plaint and that the Respondents', having been apprised of the true factual position and furnished with documents verifying the same, were malicious in publishing what they did without bothering to ascertain the truth of the story. After this, and the exchange of correspondence between the parties, and the Respondents also not having published a satisfactory apology. It was not at all, surprising that the Appellant filed the application to strike out the Respondents defence on the ground that it was a sham.

The so called apology which was annexed to the Appellant's supporting affidavit and which the Respondents had published not on the front page but inconspicuously inside the Daily Nation of 18th November, 1995, under the heading "Clarification", also deserves to be set out in full:

“In our issue of November 10, we published a front page picture whose caption gave an impression that Ms. Grace Wahu Njoroge was the unhappy client of lawyer J. P. Machira as a result of which she assaulted him. We have since confirmed that their relationship was that of vendor and buyer and there was no suit or case pending between them. We apologise for the wrong impression and any embarrassment caused by our report.”

This clarification lacks candidness and makes things worse. It gives the impression that the Respondents were not aware of the true position when they published the photograph and its caption in the Daily Nation. But the available evidence shows that this is not at all true and that they were in possession of the relevant information which they maliciously chose to ignore. The clarification was a sham! The 1st Respondent had evasively put it in paragraph 4 of his affidavit, that the information received "resulted in the story on page 5". But even if that is so, why not also the caption under the photograph on the front-page of the Daily Nation. Any way, as I have already opined, the article on page 5 to which one is directed by the caption under the photograph on the front page, is really even by itself, no better.

Whatever qualified privilege there might have been enjoyed by the Respondents was dissipated, by to me, the clear maliciousness of the publication which is further reinforced by the bogus and false clarification.

After hearing the Appellant's application to strike out the Respondents’ defence, the learned judge of the High Court dismissed that application. In the course of his Ruling, he stated as follows:

“Going by the pleadings one may be tempted to conclude out rightly that this is a clear case which should not remain in the shelves of our registry longer that (sic) it is necessary. I have taken some time to go through the authorities as indeed I am bound to. The defence that at first appeared to be a mere denial has gathered some material from the authorities, significantly cited by both sides, that at the end of it all I believe there exist some triable issues which should go for full trial.

The principle here is that, however weak a litigant’s case may be, there could be a miscarriage of justice if such a litigant is driven out of the judgment seat before hearing. That being the case I have defiled it necessary not to delve any deeper into the matters raised before me for two basic reasons namely, the authorities cited may be used during the full trial and that any comments at this stage may embarrass the trial judge.”

But it appears clearly from the learned judge's Ruling that had it not been for the fact that the defence had "gathered some material from the authorities'', which material is not stated, and that he "believed there exist some triable issues", and why this belief and what the triable issues are, are not even adverted to, he would have concluded indeed, without much difficulty, that the Respondent's defence was nothing but a sham. The lack of the details referred to, should according to the very same reasoning of the learned judge, therefore leave the defence as a sham. For my part, I am not therefore surprised that the Appellant has appealed against the decision of the learned judge.

Although it was averred in paragraph 8(d)of the Respondents' defence that section 7 of and the Schedule to the Defamation Act would be relied upon, this was not considered by the learned Judge. This may well be because it is clear from a casual glance at these provisions of the Defamation Act, that they do not apply in the matter before him.

Counsel for the Respondents has submitted that there was no malicious intent in the publication contained in the Daily Nation as the caption under the photograph on the front page to the effect that Ms Njoroge was a client of the Appellant, was an inadvertent error, and that the article on page 5 which had taken account of the information given by the Appellant to the Respondents, gave a fair account of what had happened. There is nothing in the affidavit of the 1st Respondent to support the submission that the caption under the photograph arose out of an oversight. If anything, paragraph 3 of his affidavit was intended to justify the wording of the caption. The photograph and its caption alone constitute a defamatory publication, which was in the circumstances as already described, maliciously published. It could not have been an oversight. The clarifications of the Respondents also establish the maliciousness of the publication. When upon being directed by the caption to turn to page 5 for the full story, one was still without any specific disclaimer, intended to be still under the impression that Ms Njoroge had been swindled by her lawyer, the Appellant.

This view that I hold, disentitles the Respondents' publication in the Daily Nation from the defence of qualified privilege.

Counsel for the Respondents has placed a great deal of reliance on the judgment of Madan J.A. as he then was, in the case of D.T Dobie and Company (Kenya) Limited v Joseph Mberia Muchina and Leah Wanjiku Mbugua Civil Appeal No.37 of 1978 (unreported) in support of her submission that the Respondents’ defence was properly not struck out by the learned Judge because it was not a sham or mere denial and that a pleading should only be struck out in the clearest of cases. In D.T DobieMadan J.A. cited from not less than seven English authorities with approval, various dicta which expressed a general principle with varied intensity. He went so far as to state after having considered all these dicta including the following dictum of Dankwerts L. J. in Wenlock v Haloney and Others(1965) 1 W.L. R. 1238 at 1244 which I find to be a well balanced and appropriate commentary on 0 VI. r. 13 of the Civil Procedure Rules:

“The power to strike out any pleading or any part of a pleading under this rule is not mandatory, but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading.”,

and which in my view, goes to extreme lengths and erodes the purpose for which 0 VI r. 13 was intended to deal with, that:

“If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts before it.”.

I am not too happy with the proposition that a mere semblance would do without there being any good reason to suppose that the pleading in this case, after the pleadings are closed (see 0 VIA(l) of the Civil Procedure Rules), "can be injected with real life by amendment", none of which by the way, has been advanced in this appeal and which in my view, makes the mere application for the amendment of the Respondent's defence made to us by Counsel for the Respondents, undeserving.

As already adverted to, the learned judge concluded that the Respondents' defence should not be struck out because it was not a mere denial since it "has gathered some material from the authorities, significantly cited by both sides, that at the end of it all I believe there exist some triable issues which should go for full trials". This is not good enough; the learned judge should have given in his Ruling proper reasons of substance to show why he chose not to exercise his discretion to strike out the Respondents' defence. I think that as is required by XX. rule 4 of the Civil Procedure Rules in respect of judgments, a ruling in an application which is opposed such as the one made by the Appellant and opposed by the Respondents, must be self contained and should contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. This, I fear he did not at all endeavour to do. He therefore exercised his discretion improperly.

In the result, I would allow this appeal, set aside the orders of the learned judge of the High Court, strike out the Respondents' defence and enter judgement for the Appellant as prayed in the Appellant's application to strike out the defence of the Respondents. The Appellant shall have the costs of this appeal and of the High Court.

Dated and delivered at Nairobi this 4th day of June, 1998.

A. M. AKIWUMI

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

JUDGE OF APPEAL

JUDGMENT OF BOSIRE, J.A.

The appellant J.P. Machira is an advocate of the High Court of Kenya and practices at Nairobi in the name of Machira & Co. Advocates. The first respondent, Wangethi Mwangi, is the group Managing Editor of Nation Newspapers Ltd, the second respondent, which publishes Nation and Taifa Leo, Newspapers. For purpose of the judgment I shall refer to the parties as the appellant, 1st respondent and 2nd respondent, respectively.

The facts that gave rise to this appeal are short and generally not in dispute. On 10th November 1995, the 2nd respondent carried on the front page of the Nation Newspaper the picture of the appellant with a woman holding or appearing to hold the collar of his shirt and a certain man and another woman standing by. Under the photograph, there was a caption, which read as -follows:-

"Obviously, Ms. Grace Wahu Njoroge was not happy with her lawyer, Mr J.P Machira after they walked out of the High Court yesterday and she expressed this by grabbing his collar. The quarrel was reportedly over some money. The two were later escorted to the KICC police post. See story on page 5. (Picture by Nicholas Rukenya)."

I do not propose to refer to that was carried on page 5 of the paper at this stage. I will come back to it at a later stage in this judgment.

The aforesaid photograph was also carried by 2nd respondent's Swahili daily newspaper, Taifa Leo with a caption under it in Swahili which read as follows:

“Kama wahenga walivyonena, mbio za sakafuni huishia ukingoni, na ndivyo huyu wakili wa Nairobi, Mr. J.P Machira, alivyogundua baada ya Bi. Grace Wahu Njoroge, kumshika mashati akilalamika pesa fulani anazodai alimpa wakili huyo. Walivutia umati mkubwa wa watu kabla ya polisi kuwapeleka katika kituo cha polisi cha KICC- Picha na NICHOLAS RUKENYA”

Page 5, aforesaid carried a report, which in effect amplified the caption in the front page of the Nation Newspaper. Considering what I propose to say later in this judgment it is important to reproduce that report in full:

“An elderly woman caused a stir at the Nairobi Law Courts when she grabbed a lawyer by his shirt collar after a disagreement over money.

A yelling Grace Wahu Njoroge confronted Mr. J.P Machira in the Court corridors.

The incident attracted judiciary officials, lawyers and members of the public who watched in bewilderment.

Mr. Machira made a futile move to escape by dodging the woman in the corridors as he moved from office to office. However, she pursued him through the eastern gate at the Law Courts.

The lawyer later showed reporters documents on a land sale agreement indicating that some land in Kajiado was to be purchased by Kangemi Unyitaniri Women’s Company. According to the sale agreement, the company was to buy the land for Kshs. 2. 7 Million but could not pay the whole amount within the agreed time. The group only raised the downpayment of Kshs. 1. 5 million.

In the new sale agreement with Ms Njoroge dated September 12, last year, purchase price was raised to Shs. 3. 5 million with conditions that the interest rate would be at 28 per cent.

Out of this money, Ms Njoroge was supposed to refund the Shs. 1. 5 Million paid by the company as downpayment in the earlier agreement.

She was to pay Mr. Machira’s advocates Shs. 2 million to complete the land sale transaction. One of the conditions was that Mr Machira would not release any documents to Ms. Njoroge until the Shs. 2 million was paid to his advocates.

The agreement was signed by both parties in the presence of Mr S. Kimondo Mubea for Mr Machira and S.N. Waruhiu for Ms. Njoroge. The incident sparked off confusion causing security personnel at the law courts to close the gate holding back the advocate.

Police officers moved in and escorted the two to KICC police post and later to Central Police Station where Mr. Machira reportedly recorded a statement."

The above report was shown to have been filed by one Adieri Mulaa, who, from the evidence on record, was a reported employed by the 2nd respondent. The details in the report touching on the alleged sale of a parcel of land by the appellant to Ms. Njoroge were provided by the appellant himself.

It is clear from the averments in the plaint and the affidavit evidence on record that the appellant does not dispute that an incident involving him and a woman known as Grace Wahu Njoroge did occur on 9th November 1995 at the Law Courts, Nairobi. What emerges from the record is that after that incident the appellant may have become apprehensive that the 2nd respondent would carry the incident in its daily papers and perhaps not put it in the correct perspective. He contacted the respondents on the afternoon or evening of 9th November 1995 with a view to and did give to them documents and the background facts, in detail on the matter, a summary of which is reproduced above.

It is quite clear from the report above that at the time of going to press the both respondents were aware that Ms. Njoroge was not the appellant's client. In his letter to the Chief Editor of the 2nd respondent dated 17th November. 1995, the appellant called the 2nd respondent's attention to that fact and demanded that the latter publish a suitable correction, the form of which he supplied in the form of a press statement. The respondents did not oblige.

Instead, on 18th November 1995, the respondents published what was titled as "clarification", in the Daily Nation Newspaper. It must have been in small print and put in a less conspicuous place because the appellant did not notice it, with the result that on 5th December 1995, he sent a reminder to the 2nd respondent and in addition demanded that it admits liability for libel. The contents of the alleged clarification, its positioning in the newspaper on which it was printed and its form, clearly show that it was done half-heartedly and in a slanted manner. It read as follows:

"In our issue of November 10, we published a front page picture whose caption gave an impression that Ms Grace Wahu Njoroge was an unhappy client of lawyer J.P Machira as a result of which she assaulted him. We have since confirmed that their relation was that of vendor and buyer and ther was no suit or case pending between them. We apologise for the wrong impression and any embarrassment caused by our report." (Emphasis supplied.)

The underlined passage suggests that the 2nd respondent, in publishing the front page caption about the appellant was unaware of the correct facts. That cannot be true because in the report at page 5 of its paper of 10th November 1995, and which earlier on reproduced, it clearly explained the correct position. So to imply that it confirmed the correct position later is clearly untrue.

On 10th February 1996, Taifa Leo carried an apology in Swahili. Like the English version it was small and in a less conspicuous place in the paper.

The 2nd respondent thought the clarifications it gave were sufficient and notified the appellant as much by its letter to him dated 4th January, 1995, (but I think they meant 1996), and did not think it could take the matter any further. That provoked the appellant to institute a libel suit in the High Court, at Nairobi.

In his plaint, dated 11th July 1996, after he set out the essential fact, the appellant averred, inter alia, that the aforequoted front page publications were published despite the fact that the respondents' reporters had been furnished with documents to verify the factual position, that those captions are false and their publication was actuated by extreme malice and spite. particulars of which he itemised, and were calculated to injure him in his personal and professional image as an advocate of the High Court of Kenya, and that he has suffered considerable distress, agony, mental torture, humiliation, public scandal, odium, suspicion and contempt.

Both the respondents appeared by counsel and filed a joint written statement of defence in which they admitted publishing the words which the appellant was complaining about but denied in paragraph 7 of the defence having been furnished with the correct factual position or documents in that regard. They also denied the words complained of were published falsely or maliciously. Otherwise, the other paragraphs of the written statement of defence were general denials of the essential and pertinent averments in the plaint with regard to the words complained of. I wish to make particular reference to paragraph 8(d) of the defence in which the defendants aver that the words complained of were published under a sense of public duty and without any malice and in the honest belief that the information contained therein was true, that it was for public benefit and interest and in a privileged occasion.

The appellant later filed a reply to the defence, particulars of which I do not consider it essential to rehash here. Suffice it to state that after it was filed pleadings closed. The appellant did not think the respondents' joint defence answered sufficiently the averments in his plaint. In his view, the averments in the defence constituted mere general denials. He did not think it raised any issue on which evidence could he called. Consequently he decided to and brought an application under the provisions of Order 6 rule 13 (1) (b), (c) and (d), of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, seeking orders, inter alia that the respondents' defence be struck out. In his affidavit in support of that application the appellant rehashed the averments in the plaint and in addition exhibited the newspaper reports aforesaid and several correspondence which had been changed between the parties before the appellant brought his action. I do not propose to recite what the appellant specifically stated in that affidavit. The response to it is what is more pertinent.

Wangethi Mwangi, the first respondent, swore the affidavit in reply, which was based on information he said he received from the photographer and reporter earlier on, referred to in this judgment. The salient aspects of the affidavit that I propose to refer to are, firstly, that the deponent states that he was informed by both the photographer and the reporter, above, allegedly acting on information they had gathered from Ms. Wahu Njoroge and policemen at KICC police post, that Ms Wahu Njoroge was the appellant's client. Secondly, that on the evening before the publications complained of the appellant had contacted him through his representative, one Mr Thuita, as a result of which a meeting between the appellant and both the reporter and photographer was organized. It was out of the meeting that the story at page 5 of the Daily Nation of 10th November 1995, aforesaid, was printed.

It is noteworthy that the respondents did not challenge the correctness of what the appellant had stated in his affidavit in support of the application. What that means, in my view, is that the respondents were not and indeed are not challenging the appellant’s version of the facts. What they seem to say, and that clearly emerged from their counsel’s submissions both in the superior court and before us, is that the captions earlier on referred to may be defamatory of the appellant but that they were published in privileged circumstances and without any malice. The privilege is both statutory and also arises at common law, she so submitted.

Mbogholi Msagha, J. who did not think that the appellant’s was a proper case for granting the relief he sought and dismissed his application, heard the application. This is what he said, in pertinent part:

“Going by the pleadings one may be tempted to conclude out rightly that this is a clear case which should not remain in the shelves of our registry longer than it is necessary. I have taken some time to go through the authorities as indeed I am bound to. The defence that at first appeared to be a mere denial has gathered some material from the authorities significantly cited by both sides, that at the end of it all I believe there exist some triable issues which should go for a full trial.”

The learned Judge talked of issues but did not identify them. Nor did he set out any facts or circumstances from which the issues could be identified. It is the aforequoted part of his ruling which the appellant has attacked in this appeal as being a misdirection and on the basis of which his application was dismissed.

Before considering the appeal on the merits, there is a procedural aspect, which I propose to grapple with and dispose of first. Miss JanMohammed for both the respondents submitted that the application to strike out defence was disguised as being one under order 6 rule 13(1) (b), (c)and (d)when in essence it was an application under Order 6 rule 13(1) (a) of the Civil Procedure Rules . In her view, the appellant did not demonstrate how the offending captions were scandalous, frivolous or an abuse of the process of the court or intended to annoy.

Obviously if the appellant was only relying on the pleadings as they are there is nothing in them, which would clearly show that the written statement of defence is either scandalous, vexatious, frivolous, or an abuse of the process of the court. However when the affidavit evidence is introduced it throws ample light on the defence, more particularly, that the respondents knew before publishing the offending captions that there did not exist advocate-client relationship between the appellant and Ms. Wahu Njoroge. In the absence of any controverting evidence, it could be inferred that by so publishing the captions their intention was to scandalise or to vex the appellant. And when they denied in the defence prior knowledge of the correct factual position before publishing the captions their denial could be construed, in the absence of evidence to the contrary, as an abuse of the process of the court. In the circumstances, I am of the view and so hold that the application was properly brought under Order 6 rule 13(1) (b), (c) and (d) of the Civil Procedure Rules.

Coming now to the merits of the application, the appellant is essentially challenging the trial court’s exercise of judicial discretion under Order 6 rule 13(1) (b), (c) and (d). As was rightly pointed out by Miss Janmohamed for the respondents, the jurisdiction of the court under those provisions is discretionary. Exercise of such jurisdiction entails the consideration of the available evidence and drawing conclusions from it. Authorities are clear (see for instance D.T. Dobie & Co. (k) Ltd v Joseph Mbaria Muchina & another Civil Appeal No.37 of 1978, C.A.) that in exercising that jurisdiction the court should be careful not to try a case by affidavits. It is however also clear from decided cases that a defence which is a sham should not be left to remain in the record. Otherwise, its presence will cause undue delay and expense in the determination of the action.

The appellant set out in his plaint detailed averments, which clearly brought out in detail the basis of his claim, as indeed he was obliged to do. As I stated earlier he does not deny Grace Wahu Njoroge attacked him within the precincts of the Law Courts, Nairobi. To the extent that the respondents reported that he was so attacked, the story was true. What was not true is that the attack related to his professional calling as an advocate and the insinuation that as such advocate he may have acted in such an unprofessional way as caused annoyance to Ms Njoroge. Considering the appellant's professional standing the manner in which the caption was worded, was clearly libellous of the appellant, and the respondents could only escape liability if they would establish privilege and if the facts show that the publications were without any malice or spite on their part. I earlier stated that the respondents’ main defence is privilege. Reliance was placed both on Section 7(3) of the Defamation Act Cap 36 Laws of Kenya, which according to Miss Janmohammed, preserves the application of the common law, and the common law itself. However, they did not plead facts in their joint defence to show the circumstances upon which the defence of privilege could be hinged. Nor did they set out facts in the affidavit in answer to the application to strike out defence to show upon what basis the defence of privilege was raised.

In her submissions before the superior court Miss Janmohamed implied that such facts were not necessary, and that all a defendant is required to do is to raise the defence generally and thereafter it will be upon the plaintiff to adduce evidence not only to show that the words complained of are defamatory of himself but also that they were actuated by malice. That would only be so if in his plaint a plaintiff has not pleaded particulars he is relying on to support his allegation of malice. However, where as here, a plaintiff has particularised the facts he is relying on to establish malice the burden lies squarely on the defendant or defendants where they are more than one to not only specifically deny those allegations but also to show facts which establish privilege or negative malice. That appears to me to be the import of Order VI rule 6(A)(3) of the Civil Procedure Rules, which provides 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 are 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 particulate’s of facts and matters from which the malice is to be inferred.”

As stated earlier the appellant took urgent steps to notify the respondent’s of the correct factual position regarding the fracas between him and Ms Wahu Njoroge. The respondents in effect flagrantly ignored it and instead acted on information they say they had received from policeman at KICC police post. They did not place before the Judge in the court below facts, which justified their preferring the police version of the matter to that which the appellant gave them. Whatever reason they might have had for doing so was neither pleaded nor stated in the affidavit in answer to the application to strike out their joint defence. In those circumstances was the learned Judge right in refusing to strike out the respondents' defence?

In a case like this one, a court may only look for triable issues either from the pleadings or, in an appropriate case, from affidavits filed in answer to an application seeking to strike out the pleadings concerned. Where, as in this case, issues are not clearly identifiable from both the written statement of defence and the affidavit filed there would be no proper basis for sustaining the written statement of defence.

But Miss Janmohammed submitted that any deficiency in the written statement of defence may be cured by amendment, and in fact asked us for leave to amend it to include circumstances which would show that the publications fell within the common law privilege enjoyed by newspapers. While it is true that a party may be granted leave to amend its pleadings at any stage of the proceedings (See O. VIA rule 3 Civil Procedure Rules), it is a jurisdiction which a court exercises judicially. The application has been made too late in the day. Besides the circumstances under which the informal application was made suggested that, the application was not made in good faith. Be that as it may counsel, also, submitted before us that the captions complained of were published by mistake, and that, that was one of the mattes she intended to include in the intended amended defence. With due respect to her at no time before the date of hearing of this appeal had the respondents indicated that there was a mistake in the publication of those captions. The issue was not raised in the affidavit in answer to the application in the superior court. I think the issue has been raised as an afterthought. Even if it had been pleaded, it is my view that it would not have provided a ground for privilege on the facts and circumstances of this case. The respondents had the correct information with them before they published the caption in the front page of the Nation Newspapers. and there made reference to the page where the correct version was published. That could not possibly have been done by mistake because whoever made the reference was aware of what was contained in both publications. The same may be said of the Swahili caption in Taifa Leo.

In the circumstances I agree with Mr. K'Owade, who with Mr. Ritho appeared for the appellant, that the respondents' defence consists merely of bare denials, that they published the offending words falsely the 1st respondent having admitted in his affidavit aforesaid that both their photographer and reporter had at his request gone to see and received from the appellant the correct factual position before publishing the offending captions, and that malice on their part can be inferred from their conduct. In light of the provisions of 0. 6 rule 6A, above. I do not agree with Miss Janmohammed that malice has necessarily to be specifically proved. It may be inferred. I also agree with Mr K'Owade that the respondents highlighted what was false and placed in a much less conspicuous position what was true, and from that malice could be inferred.

Miss. Janmohammed also raised the issue of absence of a translation of the quotation in the plaint of the Swahili caption, which appeared in Taifa Leo newspaper. Her submission was, in effect that it was fatal to the appellant's claim. She cannot in my view be right in that. While I agree that the language of the court is English and as far as practicable documents for use in court that are not in the English Language should be translated into English, a failure to do so where trial courts are concerned is not fatal to the suit. Besides, the trial Judge having ordered a translation thereof, properly so in my view, the complaint by the respondents' counsel is clearly unjustified. Her complaint that the translation which was done to the caption was not correctly done is also not justified regard being had to the fact that the respondents have not made any attempt to furnish what they consider to be the correct version.

Finally, while I agree with Miss Janmohammed that striking out pleadings is a draconian relief, I do not agree with her when she suggested that courts should be reluctant to grant it. The words of Lord Denning, M.R (as he then was) in the case of Alfred McAphine & Sons Ltd, [1968] 2 QB 229 are instructive. He said:

“The delay of justice is a denial of justice ...........To no one will we deny or delay right of justice. All through the years, men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare (Hamlet Act 3 se l.) Dickens tells how it exhausts finances, patience, courage and hope (Bleak House C.l). To put right this wrong, we will in this court do all in our power to enforce expedition; and if need be, we will strike out actions when there has been excessive delay. This is a stern measure; but it is within the inherent jurisdiction of the court and the rules of court expressly permit it”

In our situation also, the court has the power to strike out pleadings in appropriate cases. In my view this is a case in which the power should have been but was not exercised considering what I have endeavoured to demonstrate. In my view, therefore, Msagha, J. after finding, that on the face of the pleading no triable issue was disclosed erred in holding that life would be injected into the written statement of defence by the judicial authorities. In Captain Harry Gandy v Caspar Air Chartes Ltd [1995], EACA 139 it was held that cases must be decided on issues, which flow from pleadings. If it is desired to raise any other issues then the only way is by amendment of pleadings.

In the circumstances the order I would propose is that the appeal be allowed, the superior court's order dated 29th t1ay, 1997, be set aside, and in substitution therefor I would make an order for the respondents' joint defence to be struck out interlocutory judgment for the appellant against them jointly and severally be entered, and I would direct that the appellant's suit be set down for assessment of damages. I would also order that the costs of the appeal and of the application before the superior court, be awarded to the appellant.

Dated and delivered at Nairobi this 4th day of June, 1998.

S.E.O BOSIRE

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

JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR