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Court of AppealDismissedCivil Appeal No. 122 of 1994· [1994] KECA 109 (KLR)

G. B. M. Kariuki v Hon. Fred Kwasi Apaloo

Court of Appeal
24 November 1994
4,000 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that judges, including the Chief Justice, cannot be sued for defamation over words spoken or written in their official duties.

What this practically means

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Executive summary

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The appellant, an advocate and former Law Society of Kenya chairman, sued the Chief Justice, Hon. Fred Kwasi Apaloo, for libel arising from a letter of 22nd March 1994 in which the Chief Justice advised Mr Kenneth Matiba, a defeated 1992 presidential candidate, to obtain competent legal advice from a lawyer of standing regarding the court's decisions in Matiba's election-related appeals. The High Court (Aluoch J) struck out the plaint under order VI rule 13 of the Civil Procedure Rules as disclosing no reasonable cause of action, being frivolous and vexatious, and an abuse of process, holding that statutory provisions gave judges absolute immunity from civil liability for acts and words in their judicial function. The Court of Appeal unanimously dismissed the appeal. Gachuhi JA held the appeal unmaintainable: the Chief Justice, executing judicial or administrative duties within his jurisdiction, enjoys absolute privilege under the common law (Anderson v Gorrie) and section 6 of the Judicature Act. Akiwumi JA, in the leading analysis, found the words did not name the appellant and, absent special facts known to those to whom publication was made (particularly the secretaries), were not referable to him; further, the plaint's own allegations showed the respondent acted in his official capacity, so the claim of a personal-capacity suit was a hollow attempt to evade immunity. Omolo JA agreed, warning that entertaining such claims would expose judges to endless harassment. The appeal was dismissed with costs certified for one counsel.

Key legal issues

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01

Absolute privilege of judicial officers

Holding

The Chief Justice, acting in his judicial and administrative capacity, enjoys absolute immunity from civil suit for his expressions, under common law as received through section 3(1)(c) of the Judicature Act and section 6 of the Act.

Reasoning

The reply letter was written to Mr Matiba in response to complaints addressed to the respondent as Chief Justice. It could only have been written in that capacity. Applying Anderson v Gorrie and section 6 of the Judicature Act, no civil action lies even if the words were malicious or oppressive. The plea that the respondent was sued personally was a hollow attempt to evade the immunity.

p. 2
02

Referability of defamatory words and innuendo

Holding

The words did not name the appellant; without special facts known to the persons published to (the secretaries in particular), the words were not referable to the appellant and the plaint disclosed no cause of action.

Reasoning

Following Bruce v Oldham Press Ltd, words 'in the air' must be made referable to the plaintiff by special facts known to those to whom publication occurred. The plaint failed to aver that the secretaries knew the special circumstances linking the appellant to the words, making the statement of claim defective both on cause of action and identification.

p. 5
03

Striking out under order VI rule 13

Holding

The trial judge correctly struck out the plaint as disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of process, given the statutory immunity; the application could properly be made before defence and under inherent jurisdiction.

Reasoning

The application was argued as a point of law which need not be pleaded. The immunity rendered the suit unsustainable. The trial judge's comment on the appellant's motives was surplusage that did not affect the real reasons for striking out the plaint.

p. 6

Legal principles established

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  • A judge, including a Chief Justice exercising judicial or administrative duties within jurisdiction, enjoys absolute privilege from civil suit for expressions made in that capacity, under common law and section 6 of the Judicature Act.
  • No action lies against a judge for acts done or words spoken in his judicial capacity, even if done maliciously or oppressively.
  • Whether a plaint discloses a cause of action is determined on the plaint alone, assuming its express or implied factual allegations are true.
  • Defamatory words not on their face referable to the plaintiff must be made referable by special facts and circumstances known to those to whom they were published.

Court orders

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  1. 1.Appeal dismissed with costs certified for one counsel
On appeal from
High Court of Kenya at Nairobi
HCCC No 1376 of 1994
Jurisdiction invoked
First appellate jurisdiction over a ruling of the High Court (appeal from striking out of plaint under order VI rule 13 of the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "G. B. M. Kariuki v Hon. Fred Kwasi Apaloo", Case Analysis (1994). Civil Appeal No. 122 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/109/eng@1994-11-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.