[2004] KEHC 50 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT NAIROBI (MILIMANI LAW COURTS)

CIVIL SUIT NO. 288 OF 2004

MARTHA. W. KARUA....................................................................................................... PLAINTIFF

VERSUS

AFRICAN BROADCASTING CORPORATIONT/A KISS FM STATION.......... 1st RESPONDENT

CAROLINE MUTOKO......................................................................................... 2nd RESPONDENT

WALTER MONG'ARE Alias NYAMBANE........................................................ 3rd RESPONDENT

RULING

INTRODUCTION

1. The Application dated 23rd April 2004 is brought under OrderVIA Rule 3(1) of the Civil Procedure Rules, Section 3A of the CivilProcedure Act and all other enabling provisions. The prayers arethat; -

1. The Plaintiff be and is hereby granted leave to further amendthe Plaint

2. Costs be in the cause.

3. There be any other or further order as the court may deemjust and expedient.

2. As is usual, the grounds in support are set out in theApplication and these are that: -

a) At the time of filing suit the Plaintiff did not have therecorded cast/text which gives rise to the suit.

b) Subsequently to the filing of the suit, the Plaintiff cameinto possession of a recorded cast that did not containthe entire literature that forms the basis of the suit afterwhich the plaint was amended on 31st March, 2004 andthe amended Plaint filed in court on 2nd April 2004.

c) The Plaintiff now has a record of the entire castbroadcast and published by the defendants and eachone of them on 24th March, 2004 during the 1stDefendants/Respondents morning talk show.

d) In view of the contents of the entire recorded text it isimperative that the Amended Plaint be further amendedfor a proper and informed determination of the issues incontroversy.

e) It is in the interest of justice that the Plaint be furtheramended.

f) No prejudice will be occasioned to the Respondents ifthe orders sought are granted.

3. In her Affidavit in support, the Applicant depones to a number of issues in explaining the necessity for the proposed amendments for which leave is now sought; -

(i) That when she filed this suit on 25th March 2004, she wasrelying on what she herself had heard on the radio on themorning of 24th March 2004. It was not possible therefore, atthat time and with accuracy to set out the exact words used inthe talk show, subject of these proceedings.

(ii) That the Amended Plaint now on record is based on atranscript record of the talk show as done by her friend, oneGrace Ngige.

(iii) That a person who for reasons of privacy does not wish to benamed in these proceedings subsequently gave the Applicant acomplete word by word transcript of the offending talk showand it is this information that she now wishes to put onrecord.

4. The Applicant concedes that it is imperative under our CivilProcedure that in a defamation suit, specifically in libelproceedings, she ought from the outset to have set out the offendingwords verbatim. Since she could not do so for reasons given, shenow wishes to do so and to discharge that legal obligation.

5. The Application is opposed on purely legal and technical grounds and in furtherance thereto, the Respondents filed a number of grounds in opposition viz; -

i) the Application is defective in that paragraphs 6 and 8 ofAffidavit sworn by Martha Karua on 23rd April 2004 insupport of the Application offends rules 3 and 5 of OrderXVIII of the Civil Procedure Rules and ought to beexpunged.

ii) The amendments are intended to further depart from theoriginal pleadings the basis upon which the ex-parte ordersherein were obtained.

iii) The amendments sought are admittedly not fundamentalfor the determination of the real question in controversy orcorrecting any defect or error in the Plaintiffs pleadings.

iv) The Application for amendment is an abuse of the courtprocess.

v) The interests of justice would be better served by decliningthe Application to amend in the circumstances.

Submissions by Counsel

6. Mr. Waweru Gatonye, lead counsel on behalf of four otheradvocates who were recorded as part of the Applicant's defenceteam submitted that as in other jurisdiction, amendment ofpleadings is ordinarily allowed as a matter of course, to allow allissues to be properly placed before the court, so that the court canmake a fair determination of the matter. In any event, it iscontended that the proposed amendments would cause noprejudice to the Respondents and if prejudice is detected by thecourt, the same can be compensated with costs. Further, that theamendments proposed are intended to clearly and with focus showthe court what issues are exactly in controversy.

7. I was thereby referred to the Principles for grant of leave foramendment of pleadings as set out by Mullah's "The Code of CivilProcedure"which I shall return to in greater detail later in thisRuling. Closer home, I was referred to the case ofBlue ShieldInsurance Co. Ltd, vs. Mbondo HCCC No. 1811 of 1999 at page3where Ringera, J. (as he then was) held that amendments shouldbe granted unless prejudice would be caused to the other party andthat prejudice is such that it cannot be compensated in costs.Apaloo, J.A. had similarly held inPhilip Kiptoo vs. AugustineKubende {1982 - 1988} 1 KAR 1036and added that a caseshould be heard on its merit and not technicalities and that anyinjury to an opposing party can be cured by costs.

8. Mr. Orengo, lead counsel on behalf of the Respondentconceded that whereas amendment of pleadings should beapproached liberally, the circumstances of this case are such thatthe Application should be refused. It is his view that multiplicity ofamendments such as the case here is prejudicial to theRespondents. She had been granted leave to amend the Plaintwhich she did without opposition by the Respondents and sheshould not be allowed to have a bite at the cake of amendment again. He also argued quite forcefully, that in cases of libel, form isvery important. A Plaintiff must pursuant to Order 6 Rule 6A of theRules give particulars of the offending words. It is not enough toscatter certain words allegedly spoken and hope that the court willneatly gather the defamatory meaning there from. I am asked to beguided by the Ruling of Nyamu, J. in Biwott vs. Muite HCCC No.1369 of 2003 (unreported)where the learned judge refused togrant leave to amend a pleading as he found it to be an abuse ofcourt process. The proposed amendment was intended to quoteword by word, the alleged offending words which had not been donein the original Plaint.

9. I am also referred to the lawyer's bible on defamation,Gatleyon Libel and Slander, 8th editionfor an exposition of the fact thatthe words used must be set out, otherwise there would be no causeof action.(See also Nakahiho vs. Kibireqe {1973} E.A. 102 at103andCollins vs. Jones {1955} 1 All E.R. 145which were citedon the same point).

10. I was also asked to find that since the Applicant obtained ex-parte injunctive orders on the basis of a now admittedly defective Plaint, those orders ought to be discharged and reference was made to the decision of Ibrahim, J. in Simon Ng'ang'a Njuguna vs.Barclays Bank HCCC No. 403 of 2003 (unreported)where the learned judge firmly held that ex-parte orders obtained as said should not stand if there is a marked departure from the original pleadings.

And so the matter was left to me.

Principles for allowing amendments of Pleadings

11. Firstly, whether or not a court should grant leave to amend apleading is a matter of discretion and as has been said more oftenthan not, discretion must and should be exercised judicially and sothat in such exercise, no party is unduly prejudiced or injured.

12. Secondly, I am as are counsel in agreement thatMullah, thecode of Civil Procedure,(and I shall make reference to the16thedition (2002)]is the starting point for any clear understanding asto what issues should guide a court confronted with an Applicationsuch as the one before me. At page 1823 thereof it is said by thelearned authors Sir Solil Paul and Shri Anupam Srivastava;

"On the basis of different Judgments,it is settled that the following principlesshould be kept in mind in dealing withapplications for amendment of pleadings -

i) All amendments should be allowed whichare necessary for determination of the realcontroversies in the suit;

ii) The proposed amendments should not alterand be a substitute of the cause of actionon the basis of which the original writ wasraised;

iii) Inconsistent and contradictory allegationsin negation to the admitted position offacts or mutually destructive allegation offacts would not be allowed to beincorporated by means of amendment.

iv) Proposed amendment should not causeprejudice to the other side which cannot becompensated by means of costs;

v) Amendment of a claim or relief barred bytime should not be allowed.

vi) No amendment should be allowed whichamounts to or results in defeating a legalright to the opposite party on account oflapse of time;

vii) No party should suffer on account oftechnicalities of law and the amendmentshould be allowed to minimize thelitigation between the parties;viii) The delay in filing the petitions foramendments of pleadings should beproperly compensated by costs;ix) Error or mistake which if not fraudulentshould not be made on ground for rejectingthe Application for amendments ofpleadings."

13. From submissions before me by both counsel, it seems that Iam required to apply only four (4) principles viz. (i), (ii), (iv) and (vi)above.

Amendments necessary to determine real issues in controversy

14. In the instant case and because this has a bearing on myfinding on the other issues, it is important to set out what really isthe issue in controversy and which this court is being asked todetermine. There is no dispute that on 24. 3.2004, the 1stDefendant through its station, Kiss FM radio and by the words ofthe 1st and 2nd Defendants, uttered and disseminated by broadcastcertain words of and about the Plaintiff. As I said elsewhere in thisRuling, and on the basis of those utterances, I granted an interim Ex-parte injunction to the Plaintiff on 25. 3.2004. The words utteredwere said by the Plaintiff to be defamatory and being apprehensivethat other or the same words would be used again, she sought thiscourt's protection and I gave it. Subsequently, an AmendedDefence was filed and a whole page of the words uttered wasinserted at paragraph 5 of the Plaint and a number of particularsadded at paragraph 6. This is the Plaint that is sought to be furtheramended.

15. The Defendants meanwhile filed a Statement of Defence to theamended Plaint and raised the defence that there is no cause ofaction, which I shall return to in the next principle and moreimportantly, at this point, that in fact the words complained of,were "true in substance and in fact and in so far as theyconsist of expressions of opinion, they are fair comment on amatter of public interest without malice."

16. What does the intended amendment seek to do? In my view,and I say this having taken note that in fact what is sought to beamended is not the original Plaint but the Amended Plaint, theinstant amendment only adds to the facts already on record. It is as if the words at paragraph 5 of the amended Plaint are anabridged version of what the intended paragraph 5 in the intendedamended amended Plaint now has. That in my view is proper sothat the court can be able to determine the real issues, word byword, in question. Mullah at page 1832 says that when it is merelyadditional facts that are being put on record through theamendment, the amendment ought to be allowed. I agree andshall apply this principle to this case.

Does the proposed amendment alter the cause of action?

17. To this question and in view of what I have said above, there isno change in the cause of action. Ultimately the question to beaddressed is whether the words uttered and not denied by the 2ndand 3rd Defendants were defamatory of the Plaintiff or not. I haveseen nothing in the amended pleadings nor heard anything fromsubmissions pointing towards a change or alteration on the causeof action. A clear case of such alteration was found in SreedeviVijayan vs. State Bank of Travancore 2001(1), Kerula LawJournal (KLJ) 611,where Mohamed Shaji, J. found that in theoriginal Plaint, the claim was for Rs 35,000 advanced in cash as anoverdraft to the Defendant while the amendment related to an earlier transaction between the parties which had nothing to dowith the overdraft in cash. The learned judge refused to allow theamendment as it clearly amounted to a totally different and distinctcause of action. The case in the matter before me is certainly quiteat variance and I shall not apply this principle here.

Is there prejudice to the Defendant if amendment is allowed?

18. I have stated before that the Statement of Defence is inrelation to the amended Plaint and not the original Plaint. Theoriginal Plaint may not have word by word what was alleged to havebeen defamatory utterances. Had the proposed amendment been inrelation to that Plaint, then the Defendant may properly have raisedthe question of prejudice because I agree with counsel for theDefendants that where the words allegedly uttered are not set out inthe Plaint then there is no basis for the suit (see Nakahiho vs.Kibirege (1973} E.A. 102 at 103 and Harris vs. Harris (1879} 4C.P.D. 125 at 128).However, and without in any way attempting tomake a conclusive finding on the issue, as I am aware that there isan Application to strike out the Plaint, the Amended Plaint fromwhere I sit, has the words that were uttered. The Defendantshaving seen the words in the amended Plaint have pleaded justification. What prejudice would be caused if more words out ofan admitted transcript are added to the Plaint? With respect, I seenone.

No party should suffer on account of technicalities.

19. Courts are moving to a more liberal approach to pleadings which in my view is a good thing. Procedures and technicalitieswere made I think, with the intention of aiding in theadministration of justice and parties as much as possible shouldnot be refused a relief on account of some inadvertence or infractionof the rules of procedure. This is precisely why we have the remedyof costs if there may be inconvenience to the other party. One ofthe most liberally approached rules is the rule regardingamendments, so far as I can see. Order VIA Rule 1(1) allows a partyto amend his pleadings, "without leave"of court "at any time"before close of pleadings. Order VIA Rule 3(1) which is of relevancehere allows"the court at any stage of the proceedings",on"such terms as to costs or otherwise as may be just., allow anyparty to amend his pleadings."These are liberal words anddiscretion is given wide latitude subject to fairness and a need to dojustice to both parties. The right to amendment is one of those that judges find very difficult to deny. As Bramwell, J. said in the off-quoted case of Tildesley vs. Harper {1978} 10 CD. 393 at396,"with applications to amend ... my practice has always beento give leave to amend unless I have been satisfied that theparty applying was acting malafides...;"

20. I agree and find that I have. seen nothing in the Objectionsfiled to the Application to stop me from applying a less thantechnical approach to this matter and granting the Application foramendment.

Discretion

21. Taking a liberal approach as I have and taking the view thatpleadings such as the ones before me should be liberally construedand easily amended; I must be alive to the fact that I am exercisingdiscretion and in so doing must look at the totality of thecircumstances of this case in reaching a just conclusion. As wassaid inKhan vs. Roshan 11965} B.A. 289,grant or refusal of anApplication for leave to amend is a matter within the discretion ofthe court but "surely, the court cannot allow an amendmentwhich creates inconsistency in the Pleadings".Thankfully, as I have shown, the pleadings if amended in this case will be neater,focused and able to give the court a clear picture of issues laidbefore it for determination. The Court of Appeal inKyalo vs.Bayusuf {1983} KLR 229for example refused to overturn thedecision of Kneller, J. in the lower court where in exercise ofdiscretion, he refused to allow an amendment because it was late (3years) and the second defence contradicted the first. Again, in ourcase, I find that the amended Plaint and the proposed AmendedAmended Plaint in no way contradict each other and one as I saidputs all the issues that were left by the other before court withoutchanging the cause of action or the focus of the suit. Neither isthere a claim that the Applicant has delayed in bringing forth theApplication for amendment as was found to be a fact in the Kyalocase, (above).

Conclusion

22. This case needs to be put on track. Parties should nowproceed to the substance of it and put the acrimonious exchangesbehind them. As Ojwang, Ag. J. said earlier in the proceeding"parties should halt the barrage of Applications"as they are"unnecessarily time-consuming and will considerably delaythe hearing of the case".I respectfully adopt my brothers’directions and ask that parties should move on to the expeditiousdetermination of the suit without further delay, subject to myorders below.

23. I shall allow the Application dated 23. 4.2004 and further orderthat if they so wish, the Defendants may within fourteen (14) daysamend their Statement of Defence.

24. I shall grant costs of the Application to the Plaintiff, in anyevent.

Orders accordingly.

Dated and delivered at Nairobi this 16th day of June 2004.

I. LENAOLA

Ag. JUDGE16/6/04

Before Lenaola Ag. J.

Amos CC

Ruling read in the presence of:

Mr. Gatonye and Miss Ndirangu and Mr. Wanjao for the Plaintiff/ Applicant.

Mr. Saende for Defendant/Respondent

I. LENAOLA

Ag. JUDGE