G. B. M. Kariuki v Hon. Fred Kwasi Apaloo
The bottom line
#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
#Executive summary
#Key legal issues
#Absolute privilege of judicial officers
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.
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.
Referability of defamatory words and innuendo
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.
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.
Striking out under order VI rule 13
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.