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Court of AppealDismissedCivil Appeal No. 84 of 2008· [2009] KECA 379 (KLR)

Wycliffe A Swanya v Toyota East Africa Ltd & 1 other

Court of Appeal of Kenya
13 March 2009
Philip Kiptoo TunoiP. K. TunoiPWP. N. WakiDAD. K. S. Aganyanya
2,327 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that slander suits must be filed within 12 months of the words being spoken, not when you later feel their effects.

What this practically means

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Executive summary

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The appellant sued Toyota East Africa Limited and Francis Massai for slander arising from words allegedly uttered on 12th November 2005, filing suit on 17th January 2007. The respondents applied to strike out the plaint and the 1st respondent's name. Waweru J. struck out the suit, holding that the defamation cause of action arose on the date the words were uttered and that the suit, filed over twelve months later, was time-barred, and doubting that a limited liability company could utter words. The appellant appealed on four grounds, contending that the cause of action arose in May 2006 when he felt the impact of the remarks at his workplace, that he could have sought leave to file out of time, and that he had a reasonable cause of action. The Court of Appeal dismissed the appeal. It held that a limited liability company cannot itself utter verbal remarks and can only be liable if its officers or servants spoke in their official capacity with the employer's authority; the pleadings disclosed neither who made the remarks nor in what capacity, so the 1st respondent was rightly struck out. On limitation, the court held that the cause of action in slander accrues on the date the words are uttered, not when the plaintiff feels their effects, so the 12-month period expired in November 2006. The court further found that the essentials of defamation - publication to third parties, intent to disparage in office, profession, trade or business, and special damage - were not disclosed on the pleadings. The newly-raised tort of malicious falsehood was not entertained as it had not been raised below. The appeal was dismissed with costs.

Key legal issues

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01

Liability of a limited liability company in slander

Holding

A company cannot itself utter verbal remarks; liability attaches only where its officers or servants spoke in their official capacity with the company's authority, which was not pleaded or disclosed.

Reasoning

The court distinguished cases where companies were successfully sued in defamation on the basis of written correspondence attributable to them. Here no disclosure was made of who made the remarks, in what capacity, or with what authority, and the 2nd respondent was merely described as an employee. The learned Judge was therefore right to find the 1st respondent wrongly joined.

p. 3
02

Accrual of the cause of action in slander and limitation

Holding

The cause of action accrues on the date the slanderous words are uttered; the proviso to section 4(2) of the Limitation of Actions Act bars slander actions brought after twelve months from that date.

Reasoning

The appellant argued time began running when he felt the impact of the remarks in May 2006. The court rejected this as absurd, since it would nullify limitation periods entirely. The words were uttered on 12th November 2005, so the latest filing date was 11th or 12th November 2006; the suit filed on 17th January 2007 was out of time.

p. 4
03

Essentials of the tort of defamation

Holding

The pleadings failed to disclose publication to third parties, an intention to disparage the appellant in his office, profession, calling, trade or business, or the defamatory nature of the remarks.

Reasoning

Relying on section 3 of the Defamation Act and prior authority, the court held that words amount to slander only if published and intended to disparage the plaintiff in his office, profession, trade or business. Neither the pleadings nor the proceedings identified any third party who heard the remarks, nor the full context of the utterances, so no defamation case was disclosed.

p. 5

Legal principles established

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  • For an employer company to be liable in slander, its officers or servants must have uttered the words in their official capacity and with the authority of the employer, and the pleadings must disclose who made the remarks and in what capacity.
  • The cause of action in libel or slander accrues on the date the defamatory remarks are made, not when the plaintiff first feels their effects; suits must be brought within twelve months of that date.
  • The plaintiff in defamation must prove defamatory character, publication to a third party, malice and, in slander, special damage.

Court orders

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  1. 1.The appeal is dismissed with costs
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court striking out a plaint

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Wycliffe A Swanya v Toyota East Africa Ltd & 1 other", Case Analysis (2009). Civil Appeal No. 84 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/379/eng@2009-03-13

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