BOARD OF GOVERNORS UPPER HILL SCHOOL & another v SAM NTHENYA & 19 others [2009] KEHC 702 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 465 of 2007

THE BOARD OF GOVERNORS UPPER

HILL SCHOOL ……………………………………………………………………. 1ST PLAINTIFF

MICHAEL NJUGUNA MUHIA ……………………............……………..……….. 2ND PLAINTIFF

VERSUS

1.      DR. SAM NTHENYA

2.      DR. JOHN NGIGI

3.      THE BOARD OF TRUSTEES NAIROBI WOMAN’S HOSPITAL

4.      PAUL KINYUI CHURU

5.      MARGARET WANGECHI KINYUI

6.      RADIO AFRICA LTD T/A KISS 100 FM

7.      RADIO AFRICA LTD T/A CLASSIC  105 FM

8.      ROYAL MEDIA SERVICES LTD T.A CITIZEN RADIO

9.      ROYAL MEDIA SERVICES T/A INOORO

10.     REGIONAL REACH LTD T/A KAMEME FM

11.     ROYAL MEDIA SERVICE T/A CITIZEN TV

12.     KENYA BROADCASTING CORPORATION (KBC RADIO)

13.     THE STANDARD LTD T/A STANDARD

14.     THE NATION NMEDIA GROUP T/A DAILY NATION

15.     EAST AFRICAN MAGAZINE LTD T/A DRUM PUBLICATION

16.     THE PEOPLE LTD T/A PEOPLE DAILY

17.     THE STANDARD LIMITED T/A KENYA NETWORK (KNT)

18.     NATION MEDIA LTD T/A NATIONAL TV (NTV)

19.     KENYA BROADCASTING TV (CHANNEL1)

20.     TIMES NEWS SERVICES LTD (KENYA TIMES) …………………..……… DEFENDANTS

RULING

Before the court are two applications both brought by way of Chamber Summons pursuant to order VI rule 13(a) of the Civil Procedure Rules & Section 3A of the Civil Procedure Act.  The first application is dated 5th June, 2008 brought by the 8, 9th and 11th Defendants.  The second application is dated 8th November, 2009 brought by the 6th & 7th Defendants.  Both applications are seeking to have the plaint struck out as against the named Defendants i.e. 8th, 9, 11 and 6, and 7 for failing to disclose any reasonable action against them.

The applications are opposed by the Plaintiffs’, who filed grounds of opposition dated 16th September, 2008 and 10th December, 2008.

The 8, 9th and 11th Defendants contend that the amended plaint does not disclose any reasonable action against them, the words alleged to be defamatory have not been set out or disclosed and that the suit is time barred contrary to Order VI rule 6A of the Procedure Rules 6A.

The 6th & 7th Defendants urge the court to strike out the plaint as it discloses no reasonable cause of action, on the ground that the alleged defamatory publication complained of in the amended plaint touch on the 6th & 7th Defendants.

The Plaintiffs’ contend  as against all the above named Defendants that the plaint as amended discloses  reasonable cause of action as pleaded in paragraphs 10(1) – 10 (i-11), 11, 11a 11b, 13, 14, 15, (a) & b.  Further that the Law of Limitation does not apply as the suit was filed within time and that the amended comply with Section 8 of the Defamation Act Cap 36 of Laws of Kenya.

I have considered the submissions by all counsels before me.  The issue for determination is whether the cause of action is barred by Limitation and whether the amended plaint discloses reasonable cause of action against the 6th, 7th, 8th, 9th, and 11th Defendants.

Order 6A Rule (1) states:-

“A party may, without the leave of the court, amend any pleadings of his once at any time before the pleadings are closed.”

I find that the plaint herein was field within one year of the cause of action which means that it was filed well within time.  I also find that the amendments were done within the provisions of order VIA Rule 1 and therefore the issue of time Limitation does not arise.

Order VI Rule 6A (1) states:-

“Where in an action for libel or slander the Plaintiff alleges that the words or matters complained of were issued in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense.”

I have read paragraph 10 of the amended plaint and the same makes a general reference to the Defendants by themselves or their servants having jointly or severally caused to be published, printed or publicized words as stipulated in the proceedings paragraph.  Paragraph 10 (1) does not make reference to the publication by the 6th, 7th , 8th, 9th  & 11th Defendants paragraph 11, 13, of the amended plaint does not quote the publication by the said Defendants either.

Gathey on Libel & Slander at Section 4 Paragraph 26. 11 headed “setting out words complained of” reads in part:-

“In a libel the words used are the material facts and must therefore be set out verbatim in the statement of claim preferably in the form of quotation.  It is not enough to describe their substance, purport or effect.  The Law requires the very words of libel to be set out in the declaration that the court may judge whether they constitute ground of action ….”

It is to be noted that Order Rule 6A is indeed in mandatory terms and an action of defamation that does not satisfy the rule is clearly defective.  It is obvious that the whole suit is hinged on paragraph 10 (i) where the words complained against the other Defendants has been particularized in line with this order.

I have also considered the case of Hon Nicholas Kipyator Kiprono vs. Hon. Paul Muite & Another HCCC No. 1309 of 2003 Francis Oyasi vs. Wachira Waweru & The Standard Limited HCCC No. 1225 of 1999.

For the reasons above stated I find that the Plaintiff failed to comply with the mandatory requirement of Order 6 Rule 6A and, I accordingly grant the prayers in the Chamber Summons dated 5th June, 2008 filed by the 8th, 9th and 11th Defendant.  Likewise I grant the prayers in the Chamber Summons filed and dated 8th November, 2008 by the 6th, 7th Defendants.

Dated and delivered at Nairobi this 2nd day of November, 2009.

ALI- ARONI

JUDGE