Kenya Tea Development Agency Ltd v Benson Ondimu Masese T/A B. O. Masese & Co. Advocates

Counsel sent to hold brief applied for an adjournment because lead counsel was testifying in Nairobi. The judge refused without giving reasons but must have found the grounds untenable. The Court held the judge was exercising discretionary powers and found no sufficient reason to fault the decision. Nor did the unprosecuted application to set aside the exparte proceedings assist the appellant, since the judgment itself was not the subject of that application.

The letter imputed that the respondent was unscrupulous, notorious for soliciting business and engaged in fraudulent claims. Publication was admitted in the defence. Claims referred to in the letter had in fact been settled, some by consent, making it easy to impute malice, and the appellant had recklessly published without checking the truth. The allegations were libellous and unjustified and the respondent was entitled to compensation.

Applying the principles in Jones v Pollard as approved in Gicheru, the Court considered that the publication was confined to the Advocates Complaints Commission and not to the world at large, only two letters were written about the respondent, who had been in practice for only eight years. Compared with comparable awards, the trial judge's award did not reflect a correct estimate of damages. Interest was to run from the date of the superior court judgment.