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Court of AppealAllowedCivil Appeal 87 of 2018 & 148 & 149 of 2019 (Consolidated)· [2022] KECA 531 (KLR)

Onyango & 5 others v See & 7 others; Ajulu (Appellant)

Court of Appeal
13 May 2022
DMD K MusingaSKS G KairuFSF Sichale
4,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal restored club members' defamation defences, ruling that courts cannot strike out defences raising genuine disputes without a full trial.

What this practically means

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Executive summary

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This consolidated appeal arose from a ruling of the High Court at Kisumu (Cherere, J.) delivered on 17 May 2018 striking out the appellants' statements of defence in two defamation suits brought by Tobias O. See, chairman of the Nyanza Club, and Riley Falcon Security Services Limited. The suits concerned letters and a petition published by the appellants, club members, alleging that the 1st respondent had abused his office by deploying guards from a company he directed to guard the golf section, contrary to the club constitution. The High Court struck out the defences for want of compliance with Order 2 Rule 7(2) of the Civil Procedure Rules and for failure to raise triable issues, entering judgment on liability. The Court of Appeal, per Musinga, Kairu and Sichale, JJA, allowed the appeal. Applying the settled principles in Mbogo v Shah and DT Dobie v Muchina, the Court held that the learned Judge misdirected herself by embarking on a determination of contested matters on untested affidavit evidence; the defences of justification, fair comment, privilege and the members' right to interrogate club affairs raised triable issues warranting trial. The Court further held that the Judge ought at least to have considered whether the want of particulars was curable by amendment. The Court set aside the ruling of 17 May 2018 and substituted an order dismissing the respondents' strike-out applications dated 27 November 2017, with costs to the appellants both in the appeal and in the applications. The Court also apologised for the delay in delivering the judgment, having heard the appeals virtually in May 2020.

Key legal issues

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01

Interference with discretionary decisions on appeal

Holding

The High Court's discretion to strike out defences was exercised unjudicially because the Judge misdirected herself in striking out defences that raised triable issues.

Reasoning

The power to strike out pleadings under Order 2 Rule 15 is discretionary and appellate interference is limited to cases of misdirection, misapprehension of facts, extraneous or ignored considerations, or plainly wrong decisions. The Judge determined contested matters on untested affidavit evidence, contrary to the DT Dobie principles, and defences of justification, fair comment and members' rights to interrogate club affairs warranted trial.

p. 8
02

Whether the defences raised triable issues

Holding

The defences raised triable issues, including justification, fair comment, privilege and the appellants' rights as club members to interrogate club affairs.

Reasoning

The defences pleaded justification, privilege and fair comment, and asserted that as club members the appellants were entitled to raise concerns about accountability and adherence to the club constitution. These were contested matters requiring interrogation at trial, not matters resolvable summarily on affidavit evidence.

03

Cure of defective particulars by amendment

Holding

Even where particulars under Order 2 Rule 7(2) are wanting, the court should consider whether the deficiency is curable by amendment before striking out.

Reasoning

The High Court found the defences did not fully comply with Order 2 Rule 7(2) but did not address whether the want of particulars could be cured by amendment. Following DT Dobie, a pleading showing a semblance of a cause of action or defence curable by amendment should be allowed to go forward.

p. 8

Legal principles established

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  • An appellate court interferes with the exercise of discretion by a lower court only where the judge misdirected himself in some matter, arrived at a wrong decision, or is manifestly clearly wrong.
  • A court should not determine contested matters on untested affidavit evidence when striking out pleadings; defences raising triable issues must go to trial.
  • A court striking out pleadings for want of particulars should at least consider whether the omission was curable by amendment.

Court orders

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  1. 1.Appeal allowed with costs to the appellants
  2. 2.Ruling of the High Court delivered on May 17, 2018 set aside
  3. 3.Substituted order dismissing, with costs, the respondents' applications dated 27th November 2017

Authorities

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Legislation

  • Defamation ActSection 15
  • Defamation ActSection 7 and Schedule
  • Civil Procedure Rules, 2010Order 2 Rule 7(2)
  • Civil Procedure Rules, 2010Order 2 Rule 8
  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure Rules, 2010Order 1 Rule 7 and 8
  • Nyanza Club ConstitutionArticle 33(a); Clause 29(a)

Cases cited (11)

  • Olympic Escort International Co Ltd & 2 others v Parminder Singh Sandhu & another
    [2009] eKLR

    A triable issue must be bona fide and need not necessarily succeed

  • DT Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR

    Power to strike out is draconian, to be sparingly exercised; principles on summary dismissal

  • Sim v Stretch
    [1936] 2 All E R

    Test for defamatory tendency of words

  • University of Nairobi vs. Mbuthia
    [1980] eKLR

    Defence of privileged occasion (cited by counsel)

  • Juletabi African Adventure Limited & another vs. Christopher Michael Lockley
    [2017] eKLR

    Cited by counsel on defences

  • Joel Omondi Ondu v David Onyango
    [2019] eKLR

    Judge set aside striking out of defence for want of Order 2 Rule 7(2) compliance

  • Grace Wangui Ngenye v Chris Kirubi & another
    [2015] eKLR

    Striking out must have regard to Civil Procedure Rules and Defamation Act

  • Chrispus Keah v Joyce Mburu
    [1982] eKLR

    Publication not triable where authorship admitted but publication denied

  • Joseph Njogu Kamunge v Charles Muriuki Gachari
    [2016] eKLR

    A defamatory statement is presumed false unless the defendant proves its truth

  • Mbogo & another v Shah
    [1968] E A 93

    Appellate court should not interfere with exercise of judicial discretion unless judge misdirected himself or is clearly wrong

  • Gatley on Libel and Slander, 6th edition
    paragraph 221

    Publication is the foundation of any action for defamation

On appeal from
High Court of Kenya at Kisumu
High Court Civil Case No. 1 and 2 of 2017 (consolidated)
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Constitution of Kenya, 2010, Article 164; Court of Appeal Act) - appeals against a ruling striking out defences

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Onyango & 5 others v See & 7 others; Ajulu (Appellant)", Case Analysis (2022). Civil Appeal 87 of 2018 & 148 & 149 of 2019 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/531/eng@2022-05-13

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