[2023] KEHC 25354 (KLR)

Tatu City Limited & another v Mwagiru & 5 others (Civil Case 136 of 2018) [2023] KEHC 25354 (KLR) (Civ) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25354 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 136 of 2018

AN Ongeri, J

November 17, 2023

Between

Tatu City Limited

1st Plaintiff

Kofinaf Company Limited

2nd Plaintiff

and

Stephen Mbugua Mwagiru

1st Defendant

Winfred Wanjiku Gitonga

2nd Defendant

Gabriel Kago

3rd Defendant

Eric Wainaina

4th Defendant

Galgallo Fayo

5th Defendant

Nation Media Group Limited

6th Defendant

Ruling

1. The application coming for consideration in this ruling is the one dated 6/12/2018 brought under Order 2 Rule 15, Order 6 and Order 51 rule 1 of the Civil Proceedings rules 2010 seeking the following prayersi.The plaint dated 11th June 2018 and lodged by the 1st and 2nd plaintiffs be struck out in respect of the allegations against the 1st defendant and 2nd defendant.ii.That costs of this application be borne by the 1st and 2nd plaintiffs.

2. The application is based on the grounds on the face of it as follows;i.The plaintiff filed the plaint dated 11th June, 2018 out of time and it is therefore time barred due to limitation of time.ii.That notwithstanding, the plaint is based on a grave misconception about the employment and engagement of the 1st defendant not a publisher.iii.The plaintiff’s plaint is sub judice as it seeks to use the forum of this honourable court to litigate and influence court matters that are pending adjudication in various other courts.iv.The plaintiffs’ plaint is based on allegations that are contrary to the freedoms of speech guaranteed under article 33 of theconstitution of Kenya.v.The plaintiffs have not specifically disclosed how the alleged publications have undermined their reputation and character in the eyes of the right thinking members of the society.vi.The plaintiff does not disclose a reasonable cause of action for a defamation suit, let alone a cause of action against the 1st defendant and 2nd defendant.vii.The plaintiffs’ allegations of harassments and malice are mere allegations as they are devoid of concise and specific particulars with respect to the 1st defendant and 2nde defendant.viii.The plaintiffs allegations are unrelated and are farfetched and thus cannot be linked to the alleged cause of defamation that the plaintiffs very unimaginatively strive to pursue on the instance case.ix.The plaintiffs’ imputations of gross criminal behavior by the 1st defendant and 2nd defendant are based on plaintiffs’ opinions and actions which are contrary to the express provisions of criminal and land laws on finding of guilt and placement of caveats hence it is an abuse of the court process.x.The plaintiff is significantly based on wild and unfounded allegations against the 1st defendant and 2nd defendant that are completely unrelated and remote to their insinuation of defamation.xi.The plaint as filed has no legs to stand on and should be cut off at the knees to/and avoid an expensive and wholly unnecessary waste of scarce judicial time and resources; an act that is inimical to public policy interest.xii.It is in the interest of justice that the plaint dated 11th June, 2018 be struck out with costs at the earliest opportunity as it discloses no reasonable cause of action against the 1st defendant and 2nd defendant and lacks merit.

3. The plaintiff filed a replying affidavit sworn on 31/5/2019 by Christopher Barron opposing the application dated 6/12/2018 in which it is deposed that the application herein is an abuse of court process. the application is too general in its nature and failed to particularize the ground the 1st and 2nd defendants are seeking to rely on to have this suit struck out.

4. He stated that in his affidavit the 1st defendant make it appear that he is the founder of Tatu City Project yet the same is blatantly false. The 1st defendant is only concerned about his own personal interests and not those of the companies and their project. The 1st defendant and his proxies have taken all steps necessary to try and bring the projects to a stand still to the detriment of the plaintiffs and its stakeholders.

5. He averred that the articles that were complained about were facilitating and procured at the behest and instructions of the 1st defendant. The 1st defendant procured the 4th defendant to cover the story allegedly that the 1st and 2nd plaintiff were embroiled in a row with villagers over Tatu City Properties. This position is false. This was intended to destroy the image and reputation of the plaintiffs and their associate companies. The same was done with ill intent to insert pressure upon the plaintiffs and force them to undergo economic harm and damages.

6. The 1st defendant also procured the 5th and 6th defendants to publish a story in the business daily edition dated 23/5/2018 under the caption “Land Officials entangled in Tatu City fraud claims” concerning the 1st defendants claim in another constitutional petition namely Thika ELC Petition No. 5 of 2018 which was later withdrawn by the 1st defendant herein.

7. He stated that the stories complained of have been published by the 4th , 5th and 6th defendant at the 1st defendant’s instance in the expectation that such an adverse publicity will prevent the development of the Tatu City Project otherwise paralyze the 1st and 2nd plaintiff’s operations thus creating a leverage for the 1st defendant to try and force a buy-out of his one share on his terms.

8. The parties filed written submissions as follows: the 1st defendants submitted that to sustain a suit for defamation, the Plaintiff must prove that there were either words or publication and that they were defamatory in that they lowered the reputation of the claimant. The 1st defendant submitted that the plaint does not mention the words that were defamatory which were spoken by the 1st defendant. The Plaintiff only alleges that the 1st Defendant procured the 4th, 5th, and 6th Defendants to publish defamatory words. That is not an element of uttering a word as is contemplated by the court in of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR

9. The 1st defendant submitted the Plaint has not specifically disclosed how the alleged publications have undermined the reputation of the Plaintiffs in the eyes of the right-thinking members of the society. Having fallen short of this element, the Plaint does not sustain a defamation suit let alone against the 1st Defendant.

10. The 1st defendant submitted further that the matter is barred by limitation of time. The cause of action of the Plaintiffs against the 1st Defendant has no chance of success because the suit was instituted on 11/6/2018. It is based on the alleged invalidity of caveats which were removed by the Registrar on Chief Land Registrar on the 25/5/2012 and the Nairobi Civil Application No. 198 of 2013 which was filed in 2013.

11. The 1st defendant argued that he is a mere citizen of Kenya and has no control or influence over the journalists that work for the Business Daily or the Nation Newspapers. The 1st Defendant is not a publisher or a proprietor of any newspaper making media house as alleged by the Plaintiffs at paragraph 11 of the Plaint. Neither is the 1st Defendant an employee of any publishing company within or without Kenya. No particulars of any statement uttered by the 1st Defendant have been alleged in the Plaint.

12. The 1st and 2nd plaintiffs submitted that law is very clear and categorical on the nature of an Application seeking to strike out a suit and the threshold that must be met. Under Order 2, Rule 15 of the Civil Procedure Rules, 2010, provides:“(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that-a.it discloses no reasonable cause of action or defence in law; orb.it is scandalous, frivolous or vexatious; orc.it may prejudice, embarrass or delay the fair trial of the action; ord.it is otherwise an abuse of the process of the court,and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.(2)No evidence shall be admissible on an application under sub rule (1) (a) but the application shall state concisely the grounds on which it is made."

13. The plaintiffs submitted the application herein disregards Order 2, Rule 15 of the Civil Procedure Rules, the 1st Defendant's submissions contain material evidence which should not form the substance of an application for striking out. The Application filed by the 1st Defendant are mere side shows aimed at distracting the Court from the real issues before it for determination.

14. It is trite law that summary procedure is a radical remedy and a court of law should be slow in resorting to this procedure which can only be applicable in plain, clear and obvious cases. Madan J (as he then was) in D T Dobie & Company (Kenya) Limited v Muchina,[1982]KLR 1,at page 9,said:“The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the Court. At this stage the Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral discovery tested by cross-examination in the ordinary way.”

15. A pleading ought to be struck out if it is shown to be completely bad to the extent that not even an amendment can save it. The Court of Appeal in Francis Kamande v Vanguard Electrical Services Limited, Civil Appeal Number 152 of 1996, [1998] eKLR, observed that the summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable.”

16. The plaintiffs further submitted that the Plaint filed on the 11/6/2018 is not barred by the Statute of Limitations Act as it is not a defamatory suit as alleged to be by the 1st Defendant a clear indication, he has not properly understood the suit filed herein or feigns ignorance by alleging that this is a defamatory suit. The 1st Defendant is well aware that the issues raised in Plaint relate to the conduct of the 1st Defendant that has caused great financial loss to the 1st and 2nd Plaintiff which he cannot use this court to escape from the same.

17. The issues for determination in this application are as follows;i.Whether this suit discloses a cause of action against the 1st and 2nd defendants.ii.Whether the plaintiff’s suit is statute time barred.iii.Whether the plaintiff’s suit against the 1st and 2nd defendants should be struck out.

18. On the issue as to whether the suit discloses a cause of action against the 1st and 2nd defendants, I find that this is not an issue that can be determined at interlocutory stage.

19. There is need for a full hearing for the court to determine the said issue.

20. On the issue as to whether the plaintiff’s suit is statute time barred again the issue needs ventilation by adducing evidence to determine when the cause of action arose.

21. On the issue as to whether the plaintiff’s suit against the 1st and 2nd defendants should be struck out, I find that striking out of the suit would be a draconian step.

22. The duty of the court is to preserve pleadings no matter how hopeless. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed itself thus:“A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.”

23. The application dated 6/12/2018 lacks in merit and the same is dismissed with costs to the plaintiffs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. .....................................A. N. ONGERIJUDGE