Automated Summary
Key Facts
The plaintiff, Raphael Kitur, sued Radio Africa T/A The Star for defamation after the defendant published an article falsely claiming he was charged with issuing a bad cheque for Sh. 450,000. The plaintiff alleged this caused him to lose a senatorial nomination. The defendant admitted to an error in the publication but argued it was innocent and issued an apology in 2012. The court ruled the defence raises triable issues and denied the application to strike it out, directing the case to proceed to trial.
Issues
- The plaintiff alleged the defendant published scandalous and libelous content falsely stating he was charged with issuing a Sh. 450,000 bouncing cheque. The court examined if the publication met legal defamation criteria (referring to the plaintiff, being published to third parties, and being false) while balancing constitutional rights to fair hearing under Article 50 and substantive justice under Article 159.
- The court considered if the defendant's admitted publication of false information about the plaintiff's alleged cheque fraud, despite an apology, was sufficient to strike out their defence under Order 2 Rule 15. The defence claimed the publication was erroneous and retracted upon realizing the mistake, but the plaintiff argued it caused reputational harm.
Holdings
- The court ordered that the costs of the application be absorbed into the main suit, ensuring the financial burden remains with the ongoing litigation rather than being separately awarded.
- The court declined to strike out the defendant's defense, determining that the application did not meet the threshold for summary dismissal under Order 2 Rule 15. The ruling emphasized that the defense raises triable issues requiring a full trial, as the defendant's alleged erroneous publication and subsequent apology were matters of evidence needing adjudication. The court directed the matter to proceed to pre-trial preparations under Order 11 of the Civil Procedure Rules.
Remedies
- The matter was ordered to proceed to pre-trial preparations as required under Order 11 of the Civil Procedure Rules, ensuring a structured approach before the full trial.
- The court ruled that the costs associated with this application will be addressed as part of the main suit proceedings.
- The court declined to grant the plaintiff's prayers for striking out the defense, listing the suit for damages, or awarding costs on the application, determining the defense raises triable issues requiring a full trial.
Legal Principles
The court examined the defendant's defense that the publication was erroneous and based on a similar name to the plaintiff. It emphasized that defenses raising triable issues should not be struck out unless the case is unarguable, aligning with principles of fair hearing under Article 50(1) of the Constitution.
Precedent Name
- Awuondo – Vs – Surgipharm & Another
- John Wood – Vs – The Standard Ltd
- Jackson Ngechu Kimotho – Vs – Equity Bank Ltd
- D.T. Dobie – Vs – Muchina
- Ajit Singh Virdi – Vs – J.F. Modoy
Cited Statute
Civil Procedure Rules
Judge Name
R. E. Aburili
Passage Text
- A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling.
- Consequently, I decline to grant the prayers sought and direct the parties to cause the matter to be set down for pre-trial preparations as required under Order 11 of the Civil Procedure Rules.
- As the power to strike out pleadings is exercised without the court being fully informed on the merits of the case through discovery and oral evidence, it should be used sparingly and that the party should not be driven from the judgment seat unless the case is unarguable.