Jamleck Kamau v Royal Media Services Ltd t/a Citizen TV [2016] KEHC 5902 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  378 OF 2015

JAMLECK KAMAU………………………………………..............PLAINTIFF/APPLICANT

VERSUS

ROYAL MEDIA SERVICES LTD t/a CITIZEN TV………………………….RESPONDENT

JUDGMENT

This  ruling determines  the exparte  originating  summons  dated 29th October  2015  and filed in court on 5th November  2015 taken out  by Ms Miller & Company Advocates on behalf of the applicant /plaintiff Jamleck Kamau. The originating summons seeks Orders:-

That leave  be granted  to the  complainant/applicant  to file suit  against Royal Media  Services  Ltd  t/a Citizen TV after the limitation period in terms of the annexed  plaint.

That costs of this application abide the results of the intended suit.

The Originating Summons is predicated on the grounds that:

On various dates  in the month  of July 2013, in a television programme  dubbed ‘Road  Hog” the respondent  falsely, maliciously  and spitefully  aired/published  and or caused  be aired/published  of and containing  words that  were defamatory in nature  regarding  the applicant herein.  As a result thereof the claimant/applicants reputation has been badly tainted.

That the loss and/or damages claimed by the complainant applicant are in respect of the respondent’s actions of publishing defamatory statements.

That the  delay in filing  suit  was caused  by the fact the complainant  first sought an alternative remedy before the Complainants  Commission of  the Media  Council formed under  the Media Council  Act ( No. 46 of 2013).

That the said Commission does not award damages as a remedy hence   the complainant’s reason to file suit seeking the same.

That the applicant has a good claim against the respondent with high chances of success.

That is only mete (sic) and just that this application be allowed to enable the applicant to prosecute its claim against the respondent.

The respondent shall not be prejudiced in any way should this application be allowed.

The originating summons  is further  supported by an affidavit  unsworn by Beatrice  Nduta Advocate for the  applicant on 29th October  2015 reiterating  the grounds upon  which the application (Originating Summons) is  predicated  and annexing  copies of  the complaint  lodged  with the  Media Council and the decision of the  said Media Council  delivered on 9th September 2014.  The ‘affidavit’ also annexes copy of a draft statement of plaint setting out the proposed claim in libel.  The Originating  Summons is brought  under Sections  27,28  of the Limitation of Actions  Act  and Order 36  Rule 3C  of the Civil Procedure  Rules and all enabling  laws.  As is with exparte summons, the Originating Summons was not defended.  The applicants’ counsel Ms Nduta appeared before me on 14th December 2015 exparte and argued the Originating Summon, relying on the grounds, her ‘affidavit’ and annextures thereto.

In her  oral submissions Ms Nduta  submitted that  the publication complained  of  was  on various  dates in July 2013 and  a complaint  was lodged  with  the Media Council Complaints  Commission and the verdict  was arrived at  on 9th September  2014 and the respondent  was directed  to  air an apology which  was done on 1st February 2015  and the  applicant requested for  the copy of the apology but  the request  was declined.  She  sought the discretion of the  court under  Section 27(2) of  the Limitation of  Actions Act  since the respondent  was found  liable  by the Media  Complaints  Commission hence the applicant  would only be seeking for  damages  and liability to be confirmed.

I have seriously considered the  Originating Summon as filed, the annextures  and submissions made by the  applicant’s counsel Ms Nduta  in support of the exparte  Originating Summons.

The law that limits s the time frames within which causes of action should be instituted in court is the Limitation of Act Cap 22 Laws of Kenya and the Public Authorities Limitation Act.

In the instant case, the relevant  law is the  Limitation  of Actions Act  and specifically, the provisions  are in  Sections 4,27,28,29,30 and 31  of the said Act.

Section 4(2) of the Act provides that:

“An action founded on tort may not be brought after the end of three years from the date 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.”

The above  provision is nonetheless qualified  by Section 22 of the same Act which provide that if on that  date when  a right of action accrues for which a period  of limitation  is prescribed by the Act, the person  to whom it accrues  is under a disability  the action may be  brought  at any time  before the end of six years  from the date when  the person ceases to be under a  disability  or dies, whichever event  occurs first, not withstanding  that the prescribed  period of  limitation  has expired. There are, however, limitations to the above provision.

In this case, there has been  no  plea of  disability or fraud  or any other condition that could  have prevented  the applicant  from instituting  suit within the  prescribed  12 months  from the date(s)  when the alleged  publications were made.

Section  4(2)  of the Act  is also  qualified by Section 27 (1) of the Act  which provide that  Section 4(2) does not afford a  defence  to an action founded  on tort  where:-

The action is for damages  for negligence, nuisance  or breach of duty ( whether the duty exists  by  virtue  of a contract   or of a written  law or  independently of a contract  or written  law) and;

The damages  claimed by the  plaintiff for the negligence, nuisance  or breach of duty consist  of or  include  damages  in respect  of personal injuries  to any person; and

The court  has, whether  before  or after  the commencement  of the action, granted  leave for  the purposes  of this section; and

The requirements   of Subsection (2) are fulfilled in relation to the cause of action.

(2)  The requirements  of this Subsection  are fulfilled  in relation to a cause of  action if it is  proved that material facts relating to that cause of action  were or included facts of a  decisive character  which were at all  material  times outside  the knowledge (actual or constructive) of  the plaintiff  until a date which-

Either  was after the three years period  of limitation prescribed  for that cause of  action or was not  earlier  than one  year before the end  of that period; and

In either case, was a date of earlier than one year before the date on which the action was brought.

(3)   This Section does not include or otherwise affect-

Any defence which, in an  action to  which this  section applies  may be available  by virtue  of any written  law other than  Section 4(2) ( whether  it is a written  law imposing  a period of  limitation  or not) or by virtue of any rule  of law or equity; or

The operation of any law  which, apart from this Section, would enable  such an action to be  brought after the end of  the period  of three years  from the date  on which  the cause of action accrued.

In this case, the claim is clearly not founded on the tort of negligence, nuisance or breach of duty.

Mbito J in Lucia Wambui Ngugi  V Kenya Railways  & Another  Nairobi HCC Miscellaneous Application  213 of  1989 stated as  follows  in interpreting  Section 27  of the Limitation of  Actions Act  as reproduced  above:-

“When an application is made for leave under the Limitation Act, a Judge in chambers should not grant leave as of course.  He should carefully scrutinize the case to see whether   it is a proper one for leave.  Since it has been decided that the defendants have no right to go back to the High Court to challenge such orders, it is particularly important that when such an application is made, the order should not follows as a matter of course.  The evidence  in support if the application ought to be very carefully  scrutinized, and, if that evidence does not  make quite  clear that  the plaintiff comes  within the  terms of the Limitations Act, then  either the order  ought to be refused or the plaintiff ought perhaps  to be given an opportunity of supplementing  his evidence.  It  must, of course be assumed  for the purposes s of the exparte  application that the affidavit evidence  is true; but it  is only if that  evidence makes it  absolutely  plain  that the  plaintiff is entitled to  leave  that the application  should be  granted and the order made, for, such an order  may have  the effect  of depriving   the defendant  of a very valuable  statutory right.  It is not in every case in which  leave  has been given exparte on inadequate  evidence that  the  defendant will be  able  to mitigate the injustice  which may have  to done him by obtaining  an order for  the trial  of a preliminary issue……Section  27 of the Limitation of Actions Act…….provides that  limitation period  under Section4(2) of the said  Act can be extended  in certain circumstances s and by the provisions  of Section 31 of the Said Act, all limitation periods  prescribed  by any other written  law is extendable  by the provisions  of Section 27 of the said Act.  Consequently this application  can only  succeed if the applicant can  avail herself  of the provisions of  Section 27  of the Act  as read with Section 31 thereof, which enact  that the limiting  provision  shall not  afford a defence to an action  founded on tort  where the court  gives  leave on account  of the  appellant’s ignorance of material facts  relating to the cause of  action which were of decisive  character….  Although  what  amounts to “ ignorance  of material fats  of decisive character”  is  not always easy to distinguish, by Section 30(1) of the Limitation  of Actions Act when read with Subsection (2) thereof, material facts of decisive  character  are said  to be those  relating  to a cause of action which would enable   a reasonable  person to conclude  that he had  a reasonable  chance  of succeeding  and getting  damages  of such amount as would  justify the bringing  of the  action.”

Potter, JinGathoni vs Kenya Co-operative Creameries Ltd [1982] KLR  104similarly has this to say:

“The disability relied on by the applicant being  a physical  disability, the nature and the extent  of which was not revealed, the learned  judge  dismissed   this ground because   disability in  the statutory  context  of Section 22(2) (b) of the Limitation  of Actions  Act does not  include  physical disability…….Of course, if  the applicant  were under  a relevant  disability, she would not need to leave  of the court to commence   her action.  The issue as to whether the period limitation was extended in her case under Section 22 would no doubt be raised as a preliminary issue at the trial.  The applicant’s application for leave  was made  under Section 27, where the applicant has to show that  her failure  to proceed  in time was due  to material facts  of a very decisive  character being outside her knowledge(actual or  constructive)…….Section 30(3) of the Act provides that  for the  purposes  of Section 27 a fact  shall be taken  at any particular time  to have  been outside the knowledge  ( actual or constructive) of a person, if but  only if (1) he did not  know that  fact; and (2) in so far  as that fact  was capable  of being ascertained  by him, he had  taken all such steps (if any) as   it was reasonable   for him to have  taken that time  for the purpose of  ascertaining  it; and (3) in so far  as there existed, and  were known  to him, circumstances  from  which, with appropriate  advice, that fact might have been  ascertained  or inferred, he had taken all such steps  ( if any) as it  was reasonable  for him to have  before that time  for the  purpose of  obtaining  appropriate  advice with respect   to those  circumstances….In Section 30(5) “appropriate advice” is defined  as meaning in relation  to any  facts  or circumstances “advice  of a competent  person qualified  in their respective  spheres, to advice  on the medical, legal  or other  aspects  of that fact  or those  circumstances, as  the case  may be…..The law  of limitation  of actions  in intended  to protect  defendants  against  unreasonable  delay in the bringing  of suit against  them.   The statute expects the intending plaintiff to exercise   reasonable diligence and to take reasonable steps in his own interest.  Special provision is made for infants and for the mentally unsound.  But rightly or wrongly, the Act does not help persons like the applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.”

From the above , clearly, extension of time in  claims made in tort must be  in respect of  personal  injuries arising  from negligence, nuisance  or breach of duty (whether  the duty exists  by virtue  of a contract  or of a written  law or  independently of a contract  or written law).

And from the aforesaid section 27 of the Limitation of Actions Act, extension of  time only applies to claims made  in tort  and even in tort, the claims  must be  in respect of  claims for  personal  injuries  arising  from negligence, nuisance   or breach  of duty(whether  the duty exists by  virtue  of a contract  or written law.)  Therefore Section 27 does not provide for extension of time in defamation cases.  This position was confirmed in the case of Mary Osundwa V Nzoia Sugar Company Ltd CA 244 of 2000 where the Court of Appeal stated:

“ Section 27(1) of the Limitation  of Actions Act clearly lays down that in  order to extend time for  filing  a suit the  action must be  founded on tort and must relate  to the torts  of negligence, nuisance  or breach of duty and the  damages  claimed must be in respect  of personal  injuries  to the plaintiff  as a result  of the tort.”

Odunga J in Republic  V Principal  Magistrate P. Ngare  Gesora &  2 Others Exparte Nation Media Group Ltd [2013] e KLR  held that  a claim  for damages  for defamation cannot  lend itself to the remedy of extension of time under Section 27  of the Limitation of Actions Act.

The Court of Appeal, Shah JA in Mary Wambui Kabugu V Kenya Bus Services Ltd CA 195/1995 stated inter alia:

“…………There may even be cases  where a judge  because  of workload  in the superior court, may not have time to apply his mind  to the requirements of  the Act which Act  of course limits  the granting  of such leave  in respect of  personal injury.  Fatal Accidents  Act and the Law  Reform Act claims only often, the interpretation  of Section 27, 28 and 29 of the Act as  explained in Section 30 of the Act may not have been brought to the attention of the Judge……..”

The above  decision of the Court of Appeal  was also clear  per  Akiwumi JA that the  order granting   leave is only provisional  and not final  since it is made exparte  and the  defendant would  have every  opportunity of challenging  the facts  and the law afterwards at the trial.  Nonetheless, the granting of leave is not an automatic right to every applicant.  The  court being  asked to grant  such leave  must be  satisfied   that the application satisfies the conditions to be fulfilled in Section 27(2)  of the Limitation  of Actions Act, since the issue of  limitation is a jurisdictional  issue  and therefore  it should not be  decided  by an erroneous  decision (see  Carmella Wathugu Karigaca V Mary Nyokabi Kangaca  CA 30/95 and without jurisdiction, as was  held in Owners  of Motor Vessel Lilian “S” Vs  Caltex Kenya Oil Co Ltd a court of law has  no power to make one  more step.  It must down its tools.

In Dr Lucas Ndungu Munyua  V Royal Media Services Ltd & Another [2014] e KLR G.V. Odunga  J held that  as there  was no jurisdiction to extend  the time in respect  of the claim in defamation,  the suit in so far  as the  claim was concerned, was  therefore   incompetent  and could not  stand  and proceeded to dismiss the suit.  Similarly in Nzoia Sugar Company Ltd VCollins Fungututi CA 7 of 1988[1988] KLR 399.  The court was clear that:

“A judge cannot lawfully award damages for defamation in an action barred 12 months after the cause of action arose.”

In Dhanesvar V Mehta Manilal M. Shah [1965] EA 321 the court stated that “……the effect of limitation enactment is to remove remedies irrespective of the merits of the particular case.”

In the other words, it matters not  that  the applicant herein has a  good case  and or that he  delayed   filing  of the suit for reasons that  he was pursuing his  complaint  with the  Media Council Commission  and or that  the said Commission  only rendered  its decision on 9th September  2014 after  the period of filing suit  was over  or that  the said Commission  could not  award  damages  hence this action.  Those are not acceptable grounds which this court can rely on to grant extension of time for filing suit that is statute barred. Even if the claim was  falling  within  Section 27(2)  of the Limitation of Actions Act, there is indeed no evidence  that the applicant  was ignorant  of material  facts of  a decisive  character  as  he was ably  represented  by the advocates Miller & Company Advocates who filed the complaint  on his behalf  before the  Media Council  Commission and  who must have known and therefore  advised  him that the Commission does not award  damages  and or that the  suit would  be statute barred  after 12 months  from the date  when the  cause of action  allegedly arose.

The object  of limitation  enactment, it should  be noted, it  to prevent  a party  from prosecuting  stale  claims  and unless  the person fulfils  the conditions  for extension of the limitation period  as set  out  in the Act, the court has to reject  the application especially where the law does not even permit extension of the limitation period as is in this case of defamation.  See Rawal V Rawal [1990] KLR 275 Bosire J and Iga V Makerere University [1972] EA 65.

In addition  to the above statutory  enactment and the relevant  case law  which I have  cited  extensively, Section 5 of the Civil Procedure  Act Cap 21 Laws  of Kenya is explicit  that:

“Any court shall, subject to the provisions herein, have jurisdiction to try all suits of a civil nature exceptingsuits of which its cognizance is either expressly or impliedly barred.”

From the above bar, this court exercising civil jurisdiction is barred by the Limitation of Actions Act from hearing and determining suits which are statute barred and where the said law prohibits any extension thereof of the limitation period. In David Githumbi Thande & Another  vs Githunguri Dairy Farmers  Co-operative  Society  Ltd & 9 Others  Mwera J ( as  he then was ) allowed an application seeking  to review  orders of the court  that had  allowed extension  of the limitation period to  file suit based on the tort  defamation on the ground that  when the  plaintiff  filed a  chamber summons  and got  time enlarged  within  which to bring the suit, all was in error  because the  Limitation of Actions  Act only provided for such extension  in the event  of a  claim for personal injury or death.

The upshot of all the  above  is that I find the Originating Summons dated  29th October  2015 misconceived  and I proceed  to strike it out  and  dismiss it with no orders as to costs.

I must  however  mention  that the  so called “affidavit”of Beatrice  Nduta in support  of the Originating Summons was not commissioned  and therefore it  remained  a mere statement  of fact not testable  on oath.

The requirement  of the law, and  hence the  term affidavit, and that an affidavit  can only be  an affidavit  if it  is commissioned by either  a commissioner  for Oaths, a Magistrate  or a Notary  Public  is an elementary requirement.  An affidavit  by its every character  contains matters of  evidence on oath  and has  attendant  consequences  including  if one  is  found to have lied  on oath, they may  be culpable  of perjury.  It therefore follows that for a statement to be called an affidavit,  it must be signed  on an oath  being administered  on the deponent  otherwise  a non commissioned affidavit  does not  elevate  such signed  statement  to status of   an affidavit  but places it at best as a mere  signed  statement of facts.

Consequently, I find that there  was indeed  no affidavit  supporting  the Originating  Summons and therefore  the question that  follow  is whether that   situation is curable  by Order 19 Rule 7  of the Civil Procedure Rules which provides  that the court  may  receive  any affidavit  sworn for the  purpose   of being used in any suit  notwithstanding  any defect by misdescription of the parties or otherwise  in the title or other  irregularity  in the form thereof, or any  technicality  and or  invoke Article  159(2) (d)  of the Constitution  which calls on  the courts  to ensure that  justice  shall be  administered  without undue  regard  to procedural technicalities.  I am persuaded beyond peradventure that a non commissioned affidavit is not an affidavit.  Commissioning  of an  affidavit is  what clothes  a statement  to be an affidavit  and therefore  failure  to commission an affidavit  is not a mere  technicality and  neither is  it a defect  of misdescription  or other  technicality in form that a serious  court of law can ignore.  It goes to the root of the matter.  Accordingly, I find that the Originating Summons dated 29th October 2015 was and is without a supporting affidavit.

The other question is, can that Originating Summons   survive on its own without a supporting affidavit?  The answer is  found in  the same  procedural provisions  that  permit the  filing of an  Originating Summons  for extension  of the limitation  period  under Sections  27  of the Limitation of Actions Act Cap 22 Laws of Kenya.  The relevant provision as correctly cited by the applicant is Order 37 Rule 6 of the Civil Procedure Rules which expressly provides that:

“6(1) an application under Section 27 of the Limitation of Actions Act made before filing a suit shall be made exparte by Originating Summons   supported by affidavit.”

The above provision of Order 37 Rule 6(1) of the Civil Procedure Rule is clear that an Originating Summons   such as the present one must be supported by an affidavit.  It is therefore trite that the Originating Summons is unsupported by any evidence   by way of an affidavit.

Noting that  the summons is to be  heard exparte, affidavit  evidence, and therefore  evidence  on oath would be  absolutely necessary at this stage  to  satisfy the court as to the reasons  for the delay  in filing suit  within  the statutory period  and which reasons  are amenable  to being challenged at the trial of the main suit where such leave is granted.

In the premise, and  even if I was to be found wrong on my earlier  finding that  there is no jurisdiction  for this court  to extend  the limitation period for  filing  of suit based on defamation  (libel or slander), I would still  be inclined to dismiss the Originating  Summons as being  incompetent .  Accordingly, the Originating Summons dated 29th October, 2015 is hereby struck out and dismissed with no orders as to costs.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 10th day of February, 2016.

R.E. ABURILI

JUDGE

10/2/2016

Coram Honourable Aburili J

C.A. Adline

Miss Kihumba holding brief for Miss Nduta for the applicant (exparte)

Court – Ruling read and delivered in open court as scheduled.

R.E. ABURILI

JUDGE

10/2/2016