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Court of AppealPartially AllowedCivil Appeal No. 179 of 1997

J.P Machira T/A Machira & Company Advocates v Wangethi Mwangi & another [1998] KECA 46 (KLR)

Court of Appeal
4 June 1998
ROR. S. C. OmoloAAA. M. AkiwumiSBS. E. O. Bosire
10,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out the Nation's defence in a defamation suit, ruling that ignoring correct facts before publication proves malice and destroys qualified privilege.

What this practically means

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Executive summary

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The appellant, an advocate of the High Court, sued the Group Managing Editor and publisher of the Daily Nation and Taifa Leo for defamation after they published a front-page photograph and caption portraying a woman, Ms Grace Wahu Njoroge, as his unhappy client grabbing his collar over money. In truth she was a land purchaser, not a client, and the appellant had furnished the respondents with documents showing the correct position before publication. The respondents pleaded qualified privilege and denied malice. The appellant applied under Order VI rule 13(1)(b), (c) and (d) of the Civil Procedure Rules to strike out the defence; Mbogholi Msagha J refused, holding without identifying any triable issue that some existed. The Court of Appeal allowed the appeal in three concurring judgments. It held that qualified privilege is destroyed by malice express or implied, and that malice could be inferred from the respondents' deliberate or reckless ignoring of correct information in their possession, from their false and sham 'clarification', and from their highlighting the false while relegating the true to an inconspicuous position. The court held that a defence consisting of bare denials of well-known facts, unsupported by any pleaded basis for privilege, disclosed no triable issue; that a judge refusing to strike out must identify the triable issues and give reasons of substance; and that the belated application to amend to plead honest mistake was an afterthought. The orders of the High Court were set aside, the defence struck out, interlocutory judgment entered for the appellant, and the suit set down for formal proof and assessment of damages, with costs of both courts to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' joint statement of defence disclosed triable issues or was a sham fit to be struck out under Order VI rule 13(1) of the Civil Procedure Rules
  2. 2.Whether the application to strike out was properly brought under Order VI rule 13(1)(b), (c) and (d) rather than rule 13(1)(a)
  3. 3.Whether malice could be inferred from the respondents' conduct so as to destroy the defence of qualified privilege
  4. 4.Whether the learned judge of the High Court properly exercised his discretion in refusing to strike out the defence
  5. 5.Whether the respondents should be granted leave to amend their defence to plead an honest mistake

Key legal issues

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01

Striking out a defence that raises no triable issue

Holding

The power to strike out under Order VI rule 13(1) is drastic and to be exercised with great caution and only in the clearest of cases, but once it is clear no useful purpose would be served by a trial, the court is entitled to strike out the pleading; a trial cannot be held merely because it is usual to hold trials.

Reasoning

The court distinguished D.T. Dobie's 'mere semblance' dictum, holding it could not mean that no pleading could ever be struck out where no useful purpose would be served by trial, otherwise Order VI rule 13(1) and Order 35 rule 1 would be rendered nugatory. The respondents' own apologies admitted the falsity of the central allegations, so their denials were unmaintainable and no triable issue existed on the pleadings or affidavits.

p. 6
02

Malice destroying qualified privilege

Holding

Qualified privilege is destroyed by malice express or implied; malice may be inferred where a publisher, armed with correct information supplied by the complainant, deliberately or recklessly ignores it and publishes a false and more sensational version, highlighting the false and relegating the true to an inconspicuous place.

Reasoning

The respondents had the appellant's documents showing Ms Njoroge was a purchaser, not a client, before publication; the page 5 story recorded this, yet the front-page caption asserted a client assaulting her lawyer over money. Their subsequent 'clarification' falsely implied they had only later confirmed the true relationship. Deliberate lies and the bogus clarification reinforced the inference of malice, dissipated the privilege and disentitled the publication from the defence.

p. 6
03

Burden of pleading privilege and negativing malice

Holding

Where malice is particularised in the plaint, the defendant must specifically deny the allegations and plead the facts upon which the defence of privilege is hinged; a general plea of privilege without facts is insufficient.

Reasoning

Order VI rule 6A(3) of the Civil Procedure Rules requires a plaintiff alleging malice to reply with particulars where privilege is pleaded; correspondingly, the respondents neither pleaded the circumstances constituting the privileged occasion in their defence nor set out such facts in the affidavit answering the striking-out application. Their failure left the defence of privilege without any factual foundation and the bare denials raised no issue for trial.

p. 14
04

Duty to give reasons when refusing to strike out

Holding

A judge who declines to strike out a defence on the ground that triable issues exist must identify those issues and give reasons of substance; a ruling that 'studiously avoided identifying even one single issue' shows an improperly exercised discretion.

Reasoning

The learned judge found triable issues but did not identify them or set out facts from which they could be identified. Following the requirement of Order XX rule 4 for judgments, an opposed ruling must be self-contained with points for determination, decision and reasons. The absence of reasons meant the discretion was exercised improperly and the appellate court was entitled to intervene.

p. 13
05

Late amendment to plead honest mistake

Holding

The unfettered power to allow amendments at any stage is exercised judicially and will not be used to enable parties to create fanciful defences late in litigation; an honest-mistake plea raised for the first time on appeal is an afterthought.

Reasoning

The respondents never raised honest mistake in pre-suit correspondence, in the defence, or in the first respondent's affidavit; the first time it surfaced was counsel's submission on appeal. The application was made too late in the day and the surrounding circumstances suggested it was not made in good faith. Moreover, on the facts, the caption could not have been published by mistake since the correct version appeared in the same issue at the page the caption itself referenced.

p. 6

Legal principles established

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  • A trial cannot be held merely because it is normal or usual to hold trials; where it is perfectly clear that no useful purpose would be served by a trial on the merits, the court is entitled to strike out a pleading
  • Qualified privilege can be destroyed by malice, whether express or implied, and malice may be inferred from a deliberate, reckless or even negligent ignoring of facts
  • Where a plaintiff has particularised the facts relied on to establish malice, the burden lies on the defendant not only to specifically deny those allegations but also to plead facts which establish privilege or negative malice
  • A ruling on an opposed application must be self-contained, with a concise statement of the case, the points for determination, the decision thereon and the reasons for the decision; a judge who fails to identify the triable issues he finds to exist exercises his discretion improperly
  • Cases must be decided on issues which flow from the pleadings; any other issue can only be introduced by amendment

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the superior court dated 29th May 1997 set aside
  3. 3.The respondents' joint defence struck out
  4. 4.Interlocutory judgment entered for the appellant against the respondents jointly and severally
  5. 5.The appellant allowed to formally prove his claim / suit set down for assessment of damages
  6. 6.Costs of the appeal and of the High Court awarded to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority

Wrote the judgment

Omolo JA wrote the first judgment. He held that the respondents' denials could not be sustained on the material on record, that malice destroying qualified privilege could be inferred from their deliberate ignoring of facts supplied by the appellant, and that no triable issue was disclosed. He would allow the appeal, strike out the defence and enter interlocutory judgment with formal proof.

I have without any hesitation, come to the conclusion that no triable issues are disclosed either in the defence of the respondents, in the replying affidavit of the first respondent or in anything that was said before us by Ms Janmohamed.p. 6
AA
majority

Wrote the judgment

Akiwumi JA in a separate judgment held that the photograph and caption alone constituted a maliciously defamatory publication, that the respondents' 'clarification' was a sham which reinforced the malice and dissipated qualified privilege, and that the learned judge below failed to give proper reasons for refusing to strike out the defence, thereby exercising his discretion improperly.

Whatever qualified privilege there might have been enjoyed by the Respondents was dissipated, by to me, the clear maliciousness of the publication which is further reinforced by the bogus and false clarification.p. 8
SB
majority

Wrote the judgment

Bosire JA in a separate judgment held that the application was properly brought under Order VI rule 13(1)(b), (c) and (d); that where a plaintiff has particularised malice, the burden shifts to the defendant to plead facts establishing privilege or negativing malice; that the defence consisted of bare denials with no identifiable triable issues; and that the belated application to amend was an afterthought made too late in the day.

Where, as in this case, issues are not clearly identifiable from both the written statement of defence and the affidavit filed there would be no proper basis for sustaining the written statement of defence.p. 15
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1709 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory order and ruling of the High Court (appeal as of right under the Court of Appeal's appellate jurisdiction)

Relief refused

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Respondents' application for leave to amend the defence to plead that the photographs were published through an honest mistake

The issue of an honest mistake was raised for the first time on appeal, was not raised in the affidavit in reply or prior correspondence, and was an afterthought made too late in the day and not in good faith

p. 15

Costs

Costs of the appeal and of the High Court awarded to the appellant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That being my view of the matter, I would allow the appeal, set aside the order(s) made by the superior court and substitute them with one allowing the appellant's chamber summons, strike out the defence filed and enter interlocutory judgment for the appellant with a further order that the appellant be allowed to formally prove his claim.
p. 6Final orders - appeal allowed, defence struck out, interlocutory judgment entered
In the result, I would allow this appeal, set aside the orders of the learned judge of the High Court, strike out the Respondents' defence and enter judgement for the Appellant as prayed in the Appellant's application to strike out the defence of the Respondents.
p. 10Akiwumi JA - disposition
In the circumstances the order I would propose is that the appeal be allowed, the superior court's order dated 29th t1ay, 1997, be set aside, and in substitution therefor I would make an order for the respondents' joint defence to be struck out interlocutory judgment for the appellant against them jointly and severally be entered, and I would direct that the appellant's suit be set down for assessment of damages.
p. 16Bosire JA - disposition
I would award the costs in the High Court and in this Court to the appellant. As Akiwumi and Bosire, JJ.A. agree, those shall be the orders of the Court.
p. 6Costs order
I think it is trite law, and I must state it here and now, that qualified privilege can be destroyed by malice whether express or implied.
p. 3Qualified privilege and malice
I dare say, sensationalism may be permitted journalism, but deliberate and malicious suppression of information calculated to give a wrong impression is unacceptable.
p. 8Media responsibility and malicious publication
A trial must be based on issues; otherwise, it would become a farce.
p. 5Necessity of triable issues for trial

Issues in the judgment

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minor

The letter notifying the appellant that the clarifications were sufficient is dated 4th January 1995, which precedes the publication of 10th November 1995; the judge noted the date was probably meant to be 1996

minor

Typographical error in Bosire JA's proposed order rendering the date of the superior court's order as '29th t1ay, 1997' instead of 29th May 1997

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "J.P Machira T/A Machira & Company Advocates v Wangethi Mwangi & another [1998] KECA 46 (KLR)", Case Analysis (1998). Civil Appeal No. 179 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/46/eng@1998-06-04

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