ALS v EVS [2019] KECA 983 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that telling your spouse's employer defamatory things is not protected spousal communication, and granted an injunction stopping further publication.
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's discretion in refusing a temporary injunction was exercised judiciously, or whether it was based on an error of principle in misconstruing the Wenhank v Morgan authority on spousal privilege
- 2.Whether communication between spouses in respect of defamatory statements published to third parties is privileged such that no publication lies
- 3.Whether an interlocutory injunction should issue restraining the wife from publishing further defamatory material pending trial
Key legal issues
#Spousal privilege and publication in defamation
The trial court misconstrued Wenhank v Morgan; that authority concerns communication between spouses, not publication by one spouse to third parties such as the husband's employer.
Wenhank established that a libel uttered by one spouse to the other is no publication because husband and wife are one person at common law. Here the wife published defamatory words to the husband's employer and workmates - third parties - and threatened more. The principle was therefore irrelevant and the trial Judge made an error in principle, justifying appellate interference.
Interference with trial court discretion
An appellate court will not interfere with a judicious exercise of discretion, but will do so where there is an error in principle or where the trial Judge was plainly wrong.
The Court adopted the Supreme Court's formulation in Musa Cherutich Sirma: interference is warranted where the court acted arbitrarily or capriciously or ignored relevant facts or principles of governing law. Because the trial Judge's refusal rested on a misconstruction of the spousal-privilege principle, the discretion was not judiciously exercised and the appellate court was entitled to intervene.
Whether an interlocutory injunction should issue in a spousal defamation claim
Yes - since the words were on their face defamatory and further publication was threatened, and damages would be inadequate, it was just to restrain the wife pending trial.
The trial court had accepted the words were defamatory and had been inclined to grant the injunction but for the mistaken privilege doctrine. The defence raised only a general denial of intended further publication. Following Brigadier Owuor, once reputation is lost it is virtually irreversible, so damages may not suffice; an interim injunction was the just remedy.
Suing a spouse in tort during subsistence of marriage
The appellant's reliance on section 13(b) of the Marriage Act (spouses have the same liability in tort as if unmarried) was accepted as reflecting the Kenyan position, distinguishing the old common law coverture rule.
Counsel cited section 13(b) of the Marriage Act No. 4 of 2014 providing that spouses have the same liability in tort towards each other as if they were not married. The Court did not disturb the trial court's finding that the words were defamatory and published, treating the spousal relationship as no bar to the claim.
Legal principles established
#- The common law principle in Wenhank v Morgan that uttering a libel to one's spouse is no publication applies only to publication between the spouses themselves, not to publication by one spouse of defamatory material about the other to third parties.
- An appellate court may interfere with the exercise of discretion by a trial court where the discretion was exercised on an error in principle or where the trial Judge was plainly wrong.
- Because a lost reputation is virtually irreversible, damages may not be a suitable remedy and an injunction restraining further defamatory publication may be granted at the interlocutory stage where the words complained of are on their face defamatory and further publication is apprehended.
Court orders
#- 1.The order of the High Court made on 13th May, 2016 is set aside and substituted with an order granting prayer (1) of the notice of motion dated 14th August, 2015
- 2.The costs of the appeal and of the motion in the court below shall be borne by the respondent
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. 285 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the High Court under the Civil Procedure Act and Appellate Jurisdiction Act (not expressly stated in the judgment)
Relief refused
#Determination of the substantive defamation suit and the divorce cause on the merits
Both matters remain pending before the trial courts and the Court of Appeal declined to delve into their respective merits at the interlocutory stage
Costs
The costs of the appeal and of the motion in the court below shall be borne by the respondent.
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.
The order of the High Court made on 13th May, 2016 is hereby set aside and substituted with an order granting prayer (1) of the notice of motion dated 14th August, 2015. The costs of the appeal and of the motion in the court below shall be borne by the respondent.
With respect, the learned judge misconstrued the authority cited before him and made an error in principle. We are thus entitled to interfere with his discretion.
in the nature of defamation, once a reputation is lost it is virtually irreversible and therefore damages may not be a suitable remedy
It has nothing to do with publication of defamatory material between spouses. Here, it is one spouse, the wife, who took it upon herself to destroy the character of her husband in the eyes of the employer and his workmates
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "ALS v EVS [2019] KECA 983 (KLR)", Case Analysis (2019). Civil Appeal No. 244 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/983/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.