[2022] KEHC 15828 (KLR)

Nyakundi v Kenya Airways Limited (Civil Appeal E061 of 2022) [2022] KEHC 15828 (KLR) (Civ) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15828 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E061 of 2022

JN Mulwa, J

December 1, 2022

Between

Daniel Gisiora Nyakundi

Appellant

and

Kenya Airways Limited

Respondent

(Being an appeal from the Ruling and Order of the Chief Magistrate's Court at Milimani Commercial Courts in CMCC No. E3189 of 2020 delivered by Hon. A. N. Makau (PM) delivered on 4th February 2022)

Judgment

1. Vide a plaint dated July 9, 2020, the appellant filed a suit in the subordinate court namely CMCC No E3189 of 2020 at Milimani against the respondent seeking general damages as well as aggravated and exemplary damages for slander arising out of an employment relationship.

2. Subsequently, the respondent lodged a notice of preliminary objection dated October 29, 2021 seeking that the suit be dismissed with costs on the ground that the appellant instituted the action outside the twelve months limitation period set out under section 4(2) of the Limitation of Actions Act.

3. In the impugned ruling delivered on February 4, 2022, the trial court allowed the preliminary objection and dismissed the appellants suit with costs to the respondent.

4. Aggrieved by the said ruling, the appellant preferred the instant appeal and raised ten grounds in his memorandum of appeal which can be summarized as follows:1. The learned trial magistrate erred in fact and in law by failing to consider the appellant’s submissions on the preliminary objection.2. The learned trial magistrate erred in fact and in law by failing to appreciate that the respondent had filed an earlier preliminary objection raising issues of res judicata.3. The learned trial magistrate erred in fact and in law when she failed to appreciate that the respondent filed a statement of defence dated October 14, 2021. 4.The learned trial magistrate erred in fact and in law by failing to appreciate the fact that the finding creates a dangerous precedent where a public/private entity can terminate, slander, later refuse to apologize and get away with it.5. The learned trial magistrate erred in fact and in law by failing to appreciate the fact that in the time between July 25, 2019 when the defamatory publications were made by the respondent and 9th July 2020 when the appellant brought this matter to court, the 12 months' timeline had not lapsed.

5. The appeal was canvassed through written submissions.The appellant, by his submissions dated May 30, 2022 submitted that his case is based on the contents of a letter of termination of employment contract that he received from the respondent on July 25, 2019. He asserted that twelve months had not lapsed from July 25, 2019 when the defamatory statements were published and July 9, 2020 when he filed the suit. He contended that the preliminary objection is just but one of the respondent’s various attempts to derail and defeat the course of justice after damaging his reputation. The appellant stated that he has a legitimate claim and urged this court to invoke its inherent jurisdiction under section 3A of the Civil Procedure Act to ensure that the ends of justice are met. He also urged that the provisions of article 159(2) (d) of theConstitution be taken into account to ensure that procedural technicalities are not elevated at the expense of substantive justice.

6. According to the respondent however, the ruling of February 4, 2022 was proper as the appellant’s suit clearly offends the provisions of section 4(2) of the Limitation of Actions Act which states that an action for libel or slander may not be brought after the end of twelve months. The respondent submitted that according to the plaint, the alleged defamatory remarks were contained in a police charge sheet dated May 17, 2013, OB No 14/16/05/2013 and Criminal Case No 48 of 2013 wherein the appellant was charged with theft by servant contrary to section 281 of the Penal Code. It was submitted that the respondent clearly stated in its statement of defence that it would raise a preliminary objection under section 4(2) of the Limitation of Actions Act,to the effect that the suit was time-barred. In support of its submissions, the respondent cited the case of Royal Media Services Ltd v Valentine Mugure Maina & another [2019] eKLR andWycliffe A Swanya versus Toyota East Africa Ltd & Another [2009] eKLR where the courts pronounced themselves on when a defamation cause accrues.

7. This court has carefully perused the plaint dated July 9, 2020. At paragraphs 6 to 13 thereof, the appellant pleaded as follows:'6. On July 25, 2019, the respondent dispatched a letter to the plaintiff notifying him of his termination of (his) employment.7. The plaintiff avers that upon receipt of the termination letter from the respondent and upon reading it that he learnt he had been terminated by the respondent on June 26, 2013. 8.The plaintiff states that on or about May 16, 2013 the defendant, their servant and employees forwarded his name (name of the plaintiff) to the police who later arrested the plaintiff.9. The plaintiff avers that on or about May 17, 2013 the defendant, their servants, employees and the police presented him (the plaintiff) before a Makadara law court vide a Police Charge Sheet dated May 17, 2013, OB No 14/16/05/2013, Police Case No CRA11/48/2013 with an inscription;'Stealing by servant contrary to section 281 of the Penal Code'10. The plaintiff avers that this act was slanderous and/or libellous hence diminished his reputation among his friends, colleagues, potential employers, relatives and the general members of the public as he was and is portrayed as a dishonest and a bad person who cannot be trusted. 11. The said words referred to and were understood to refer to the plaintiff and the same were in their natural and ordinary meanings meant and were understood to mean by right thinking members of the public that :-(i)The plaintiff is a dishonest person.

12. Further or in the alternative and without prejudice to the foregoing the said words meant and were understood to mean by way of insinuation and innuendo that:-(i)The plaintiff did not owe his success due to hard work and prudent management of his hard earned resources.13. By reason of the premises the plaintiff has been injured in his moral standing in the society and reputation and has been brought into public scandal, odium and contempt.'

8. From the above extract, this court gathers that the slanderous and libelous remarks as pleaded by the appellant were made or published on May 17, 2013 when the appellant was charged at Makadara Law Courts with the offence of stealing by servant contrary to section 281 of the Penal Code. The alleged defamatory publication according to the appellant is contained in the charge sheet dated May 17, 2013 and OB No 14/16/05/2013.

9. Section 4(2) of the Limitation of Actions Act provides as follows regarding the time limit for instituting claims for slander and libel:'(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date.'

10. The Court of Appeal in the case of Wycliffe A Swanya v Toyota East Africa Ltd & Anor [2009] eKLR stated as follows:'Unfortunately the Limitation of Actions Act (Chapter 22 Laws of Kenya) does not say so. It says in case of libel or slander no action may be filed 'after the end of 12 months from the date the cause of action accrued' and we understand this to mean from the date the slanderous remarks are made (see proviso to section 4(2) of the Limitation of Actions Act and section 20 of the Defamation Act). It would be absurd for slanderous remarks to be made about a person then he/she waits until he/she feels the effects thereof to file an action in court. If this be the case then there would be no need for any limitation period to be specified'.

11. In the present appeal therefore, the cause of action arose on May 17, 2013 when the alleged slanderlous article was published. It follows therefore that the latest the appellant should have filed his claim was May 19, 2014 since May 17, 2014 fell on a Saturday which was not a working day. However, the appellant waited over six years to file his defamation claim in the lower court. That was clearly beyond the prescribed limitation period and thus the suit in the lower court should not have been filed without prior leave of court. This is not a case where the court can exercise its inherent jurisdiction under section 3A of the Civil Procedure Act to save the suit in the lower court as urged by the appellant.

12. Further, the failure to file the suit within the limitation period is not a mere technicality of procedure that can be remedied by article 159(2) (d) of theConstitution. The court finds guidance in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR where Kiage, JA stated;'I am not in the least persuaded that article 159 of theConstitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules'

13. By the above, I find and hold that the learned magistrate did not err in finding that the appellant’s suit in the trial was overtaken by limitation of actions.

14. Accordingly, this appeal lacks merit and is hereby dismissed with costs to the respondent.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 1ST DAY OF DECEMBER 2022. JN MULWAJUDGE