Wachira Waruru & another v Francis Oyatsi [2001] KECA 200 (KLR)
The bottom line
#Kenya's Court of Appeal restored The Standard's right to defend a libel claim, ruling judges must give reasons before throwing out a defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge gave good reasons, or disclosed any consideration of the defence, before striking it out ex parte.
- 2.What is the proper test for striking out a pleading, particularly a defence in a serious libel suit?
- 3.Whether the learned Judge was right to reject the appellants' explanation for non-attendance and to hold the four-week delay in applying to set aside the ex parte orders inordinate.
- 4.Whether this Court should pronounce on the respondent's argument that the published apology left the appellants with no defence on merits.
Key legal issues
#Whether the Judge gave good reasons for striking out the defence ex parte.
He did not. The ruling merely recorded that the application was unopposed and granted the orders as prayed, without disclosing what was considered; such a ruling could not sustain so drastic a remedy.
The ruling of 2nd December 1999 recorded only that the application was not opposed and granted the orders as prayed. The Court presumed the Judge considered the plaint, the application and the supporting affidavit, but observed that he did not say so. Because striking out a defence is a drastic remedy, a judge must give good reasons; in serious libel cases it can hardly ever be assumed that all issues raised in the defence were considered. The absence of reasons rendered the ex parte striking out unsustainable.
The proper test for striking out a pleading.
The remedy is available only in plain and obvious cases where it is quite clear the pleading discloses no arguable case; hardly ever in serious libel cases.
The Court quoted with approval Wilmer LJ in Waters v Sunday Pictorial Newspapers Ltd: the remedy cannot be resorted to unless it is quite clear the pleading discloses no arguable case, the rule applying only in plain and obvious cases. The sole question is whether the case is so unarguable that it ought to be struck out in limine, not whether the defences are likely to succeed. The Court added that hardly ever in serious libel cases can a judge be presumed to have considered all issues raised in the defence.
Whether the explanation for non-attendance should have been accepted and whether the four-week delay in applying to set aside was inordinate.
The unchallenged explanation was acceptable, and the delay, largely explained by the Christmas vacation, was not inordinate.
The explanation of Mr Majanja, that the application served on the receptionist never reached him, was not seriously challenged by the respondent. The Court also kept in mind that the courts go into Christmas vacation from 21st December to 13th January each year, which accounted for much of the interval before the set-aside application was lodged on 11th January 2000. In all the circumstances the four-week delay was not so inordinate as to disentitle the appellants from being heard at the inter partes hearing.
Whether the Court should rule on the effect of the published apology on the defences pleaded.
No. As a last appellate court it declined to decide the issue in the first instance, leaving it to the superior court.
Mr Gautama argued at length that the unreserved apology published by the appellants left no room for the defences as pleaded. The Court held it could not decide that issue at that stage: as a last appellate court it preferred to have the benefit of the superior court's reasoning first, that being how the judicial system functions. The question whether the apology extinguishes the defences therefore remains for the inter partes hearing before another judge.
Legal principles established
#- Striking out a defence is a drastic remedy, and a judge must give good reasons for doing so; a ruling that does not disclose what was considered cannot stand.
- A pleading may be struck out only in plain and obvious cases where it is quite clear that it discloses no arguable case; whether the defences are likely to succeed is not the test.
- A last appellate court will not determine in the first instance an issue, such as the effect of an apology on pleaded defences, on which the superior court has never had occasion to reason.
- A delay of about four weeks in applying to set aside ex parte orders, where the period spans the Christmas vacation (21st December to 13th January) and the explanation for non-attendance is unchallenged, is not inordinate.
Court orders
#- 1.Appeal allowed.
- 2.The ruling and all orders made by the superior court on 9th February, 2000 set aside.
- 3.In substitution therefor, the ex parte orders made on 2nd December, 1999 set aside.
- 4.The application dated 5th November, 1999 to be set down for hearing inter partes before a Judge other than Patel, J.
- 5.The appellants at liberty to file grounds of objection and replying affidavits, if so advised, within 15 days from the date of the judgment.
- 6.Costs occasioned and thrown away by the non-attendance of the appellants' advocates, and all costs of the application dated 6th January, 2000 lodged on 11th January, 2000, to be paid to the respondent by the appellants, taxable if not agreed.
- 7.The appellants to have the costs of this appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1225 of 1999
- Jurisdiction invoked
- Not stated in the judgment; the appeal lies from an interlocutory ruling of the High Court of Kenya at Nairobi, but no constitutional or statutory provision conferring appellate jurisdiction is cited.
Relief refused
#A ruling on the respondent's contention that the appellants' published unreserved apology left them with no defence on merits and that the judgment entered on liability should stand.
As a last appellate court, the Court would not decide the issue in the first instance without the benefit of the superior court's reasoning; the question remains for the inter partes hearing.
Costs
All costs occasioned and thrown away as a result of non-attendance on 2nd December, 2000 on the part of the appellants' advocates and all costs of the application dated 6th January, 2000 lodged on 11th January, 2000 will be paid to the respondent by the appellants. Such costs to be taxed if not agreed. The appellant would however have costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons, we allow this appeal, set aside the ruling and all orders made by the superior court on 9th February, 2000, and substitute therefor an order setting aside the ex parte orders made on 2nd December, 1999 and order that the application dated 5th November, 1999 be set down for hearing inter partes before a Judge other than Patel, J.
Striking out of a defence is a drastic remedy and it is incumbent upon a judge to give good reasons for doing so.
It is well established that the drastic remedy of striking out a pleading, or part of a pleading, cannot be resorted to unless it is quite clear that the pleading objected to discloses no arguable case.
It can be said in certain cases, but hardly ever in serious libel cases, that the judge must have considered (when he does not say how) all issues raised in the defence.
We cannot decide that issue at this stage. As a last appellate court we would rather have the benefit of the reasoning by a judge of the superior court before we pronounce on Mr. Gautama's argument.
In all the circumstances we do not think that the delay was so inordinate as to disentitle the appellants from being heard at the inter-parte hearing of the application dated 5th November, 1999.
Issues in the judgment
#Internal date inconsistency: the judgment states Mr Majanja became aware of the set-aside application on 13th December, 2000, which is chronologically impossible since the application was filed on 11th January, 2000 and the ruling under appeal was delivered on 9th February, 2000; 13th December, 1999 is evidently intended.
Internal date inconsistency: the costs order refers to non-attendance on 2nd December, 2000, whereas the judgment's own narrative fixes the ex parte hearing and non-attendance on 2nd December, 1999.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Faiza Oscar Meuli (Suing as the Administrator of the Estate of Aisha Ali Mohamed) v Gideon Nassim Kiti & another [2020] KEELC 753 (KLR)[2020] KEELC 753 (KLR)14 Oct 2020
- Jeremiah Matoke v Kenya Commercial Bank Ltd & another [2018] KEELC 750 (KLR)[2018] KEELC 750 (KLR)15 Nov 2018applied
Cite this brief
#Cite this brief
Caselaw, "Wachira Waruru & another v Francis Oyatsi [2001] KECA 200 (KLR)", Case Analysis (2001). Civil Appeal No. 111 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/200/eng@2001-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.