WZO Konjit Tedla & Another v Osborne Ashiono Mutumira [2017] KECA 82 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out a defamation claim, holding that suits should only be dismissed early when plainly hopeless and curable by no amendment.
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 trial court erred in holding that the suit was not res judicata notwithstanding the earlier suit CMCC No. 7518 of 2009 which was struck out and dismissed with costs
- 2.Whether the claim for damages for defamation was time barred by reason of section 4(2) of the Limitation of Actions Act
- 3.Whether the trial court erred in refusing to strike out paragraphs 6, 8 and 9 of the plaint, including allegations based on privileged communication
Key legal issues
#Whether the present suit was res judicata given the earlier CMCC No. 7518 of 2009 which was struck out and dismissed with costs
The suit was not res judicata because the previous suit was struck out on technicality and not decided on merits; the appellants also failed to place the previous pleadings and proceedings on the record.
The Court accepted that res judicata is founded on public policy and serves finality of litigation and protection against being vexed twice over the same matter. However, it could not fault the learned Judge because the pleadings and proceedings in the previous suit were not part of the record before it. A suit dismissed for describing a party wrongly was struck out on a technicality and was not 'heard and finally decided' as section 7 of the Civil Procedure Act requires.
Whether the defamation claim was time barred under section 4(2) of the Limitation of Actions Act
Although the learned Judge may have overlooked the limitation issue, striking out the impugned paragraphs was not warranted because the claim was generalized, with no date indicated, leaving a thin line between allegations falling within and outside the limitation period that could only be sorted out at trial.
The Court acknowledged that if the claim concerned the utterances of 4th March 2009, it would fall outside the twelve-month limitation period for libel or slander. But paragraph 7 of the plaint alleged defamatory words uttered on diverse dates with no specific date, and paragraph 9 concerned a letter of 9th October 2009 said to be privileged. Taking the totality of the claim, striking out paragraph 6 alone would not serve the interest of justice.
Whether the plaint's paragraphs ought to have been struck out as disclosing no reasonable cause of action
The two courts below properly declined to strike out the pleadings, applying the cardinal principle that a suit should not be summarily dismissed unless it is plainly hopeless and beyond redemption by amendment, particularly where an amendment application was pending.
The Court endorsed the D.T. Dobie principle and noted there was a pending, undetermined application seeking amendments to the plaint. Guided by Articles 50 and 159 of the Constitution, courts should dispense substantive justice, allow parties to ventilate their cases, and strike out pleadings only in plain and obvious cases. Removing the respondent from the seat of justice prematurely was unwarranted.
Legal principles established
#- For the doctrine of res judicata to apply, the matter must be directly and substantially in issue in both suits, the parties must be the same or litigating under the same title, and the matter must have been finally decided in the previous suit.
- A suit may not be summarily dismissed or its pleadings struck out unless it is plainly and obviously unarguable and beyond redemption by amendment.
- A Memorandum of Appeal must set out grounds concisely, under distinct heads, without argument or narrative.
- An action for libel or slander may not be brought after the end of twelve months from the date the cause of action accrued.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs, the appeal having been unopposed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 638 of 2011
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal Rules (appeal from a decision of the High Court exercising appellate jurisdiction over the Chief Magistrate's Court)
Relief refused
#Striking out paragraphs 6, 8 and 9 of the respondent's plaint and termination of the suit on grounds of res judicata and limitation
The pleadings raised issues only resolvable at trial; striking out would remove the respondent from the seat of justice prematurely, and a pending amendment application had not been determined
Costs
No order as to costs, as the appeal was not opposed
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 the doctrine of res judicata to apply; the matter must be directly and substantially in issue in the two suits; the parties must be the same or the parties be litigating under the same title and lastly, the matter must have been finally decided in the previous suit.
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment.
Taking the totality of the whole claim or allegations by the respondent, there is a thin line that can only be sorted out during trial regarding which allegations fall within and outside the Limitation period.
It is obvious to us why the two courts below were reluctant to exercise their discretion and strike off the said paragraphs of the plaint.
For the foregoing reasons, we find no merit in this appeal which we hereby order dismissed with no order as to costs as the appeal was not opposed.
Issues in the judgment
#The judgment is a second appeal against an interlocutory ruling of the High Court (Sergon J, 25 February 2015) but the case number of that appeal is not separately stated; the record refers to it only through H.C.C.C. No. 638 of 2011, the original suit in the High Court, whereas the trial suit originated as a Chief Magistrate's Court suit filed in April 2010 - the numbering of the suits across the three tiers is inconsistent in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WZO Konjit Tedla & Another v Osborne Ashiono Mutumira [2017] KECA 82 (KLR)", Case Analysis (2017). Civil Appeal No. 269 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/82/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.