[1998] KEHC 122 (KLR)
The court held that paragraphs 11 and 12 of the amended defence should be struck out because there is no legal right or privilege to report the contents of pleadings that have not been made the subject of open court proceedings. The court found that such publication is not protected by qualified privilege, as there...
Source-derived case information.
- Citation
- [1998] KEHC 122 (KLR)
- Parties
- Plaintiff: Nation Newspaper Limited; Defendant: Finance Institute Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2221 of 1997
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Strike Out Defence Paragraphs
- Outcome
- Application allowed. Paragraphs 11 and 12 of the amended defence struck out with costs to the plaintiff.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out Pleadings, Qualified Privilege, Defamation, Court Reporting
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nation Newspaper Limited
Plaintiff
Finance Institute Limited
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons to Strike Out Defence Paragraphs
Legal Issues
- 1 Whether paragraphs 11 and 12 of the amended defence should be struck out for lack of privilege and public interest in publication.
- 2 Whether there is a right or privilege to report contents of pleadings not ventilated in open court.
Ratio Decidendi
The court held that paragraphs 11 and 12 of the amended defence should be struck out because there is no legal right or privilege to report the contents of pleadings that have not been made the subject of open court proceedings. The court found that such publication is not protected by qualified privilege, as there is no reciprocity of interest between the publisher and the public. The authorities cited support the principle that only matters ventilated in open court attract privilege, and the absence of public interest in unpublished pleadings justifies striking out the impugned paragraphs. The defendant's failure to oppose the application further reinforced the plaintiff's position.
Court Disposition
Application allowed. Paragraphs 11 and 12 of the amended defence struck out with costs to the plaintiff.
Orders
- Paragraphs 11 and 12 of the amended defence are struck out.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2221 OF 1997
NATION NEWSPAPER LIMITED.....................................PLAINTIFF VERSUS FINANCE INSTITUTE LIMITED.......................................DEFENDANT
R U L I N G
The plaintiff applied by way of Chamber Summons under Order 6 Rule 13 of the Civil Procedure Rules for an order that paragraphs 11 and 12 of the amended defence be struck out.
The reasons or grounds of this application are that, there is no public interest to publish matters not revealed on a hearing in open court and there is no privilege for such a publication.
The application was served upon the advocates for the defendants on 16th June, 1998 as confirmed by the affidavit of service filed on 2nd July, 1998. However, as at the time the matter came up for hearing on 31st July, 1998 no replying affidavit or grounds of opposition had been filed on behalf of the defendant and there was not representation on that day. The learned counsel for the plaintiff proceeded ex-parte.
In support of the application, the learned counsel for the plaintiff cited H.C.C.C No. 2105 of 1993 George Oraro -v- Wangechi Mwangi & Nation Newspapers Limited and Daily Nation -v- Mukundi & Anor (1975) E.A. 311
I have read the two authorities and related the same to the two paragraphs in the amended defence that the plaintiff seeks to strike out. With respect I agree that there is no right to report the contents of pleadings filed in court but which have not become the subject matter of proceedings in open court. Further there is no reciprocity of interest between the newspaper and its readers and therefore no qualified privilege.
For those reasons, the application succeeds. paragraphs 11 and 12 of the amended defence are hereby struck out with costs to the plaintiff.
Order accordingly.
Dated and delivered at Nairobi this 22nd day of September, 1998
A. MBOGHOLI MSAGHA
JUDGE