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High CourtDismissedNot stated in the judgment (appeal from Nakuru Chief Magistrate's Civil Case Number 1339 of 2007)

Edward K. Shakala v Rosemary Halubwa Shakala & Charles Foro Waweru

High Court of Kenya
15 May 2020
3,829 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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To win a defamation case in Kenya, you must plead the exact words used against you in your initial lawsuit.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Nakuru against a ruling of the Chief Magistrate's Court in Civil Case 1339 of 2007, in which Edward K. Shakala sued his daughter Rosemary Halubwa Shakala and son-in-law Charles Foro Waweru for defamation over allegations that he had physically and sexually abused her for ten years. The defendants raised a preliminary objection that the plaint failed to plead the actual defamatory words verbatim and failed to identify the persons to whom publication was made. On 21 December 2010 the trial magistrate, relying on Collins v Jones and Order VI rule 6A, upheld the objection and struck out the suit with costs. The appellant appealed on seven grounds, arguing the trial court acted on a mere technicality inconsistent with Article 159(2)(d) of the Constitution, relied on stale authorities, and should have allowed amendment under Order 2 rule 15(1)(a). The respondents maintained that pleading the actual words is mandatory and not a technicality. Matheka J, applying the first-appeal retrial standard from Selle v Associated Motor Boat Co and the Mbogo v Shah discretion principles, held that the actual defamatory words are the cause of action and must be pleaded verbatim; paragraph 6 of the plaint described only the effect of the publication. The failure was fatal, the trial court neither misdirected itself nor occasioned mis-justice, and fair trial rights cut both ways. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether failure to plead the actual defamatory words verbatim renders a defamation plaint fatally defective

Holding

Yes - the actual words are the cause of action; pleading only their effect or particulars of malice is insufficient and the omission is fatal.

Reasoning

The court held that Order 2 rule 7(1) requires the words alleged to have been uttered or published to be set out so the defendant knows the case against him and the court can determine whether the words were defamatory. Paragraph 6 of the plaint only described the alleged effect of the publication, not the words themselves. The court associated itself with Kennedy Nyakundi, Harrison Kariuki Muru and Veronica Wambui.

p. 4
02

Whether the trial court applied stale law and whether Order VI rule 6A was repealed by Article 159(2)(d) of the Constitution

Holding

No - Collins v Jones has been restated recently by the High Court since the 2010 Constitution; the rule was not repealed but became Order 2 rule 7.

Reasoning

The appellant argued the trial court relied on archaic authorities and a technicality inconsistent with Article 159(2)(d). The court found the Collins v Jones principle had been restated in recent Kenyan decisions post-Constitution, and counsel for the respondent clarified that Order VI rule 6A had become Order 2 rule 7 rather than being repealed.

p. 6
03

Whether the appellate court should interfere with the trial court's discretion to strike out rather than order amendment under Order 2 rule 15(1)(a)

Holding

No - the trial court neither misdirected itself, decided wrongly, nor occasioned mis-justice; fair trial rights cut both ways and defendants must not be ambushed.

Reasoning

Applying the Mbogo v Shah principles via Parliamentary Service Commission v Martin Nyaga Wambora, the court posed three questions: misdirection, wrongness, and mis-justice. It answered all negatively, holding the right to fair trial belongs to both parties and pleadings must disclose the cause of action so the defendant can prepare a defence.

p. 6

Legal principles established

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  • In a defamation action the actual words complained of must be pleaded verbatim in the plaint; failure to do so is fatal to the claim and not a mere technicality.
  • An appellate court should not interfere with a trial court's exercise of discretion unless the judge misdirected himself or was clearly wrong, resulting in mis-justice.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents
  2. 2.Fresh notice to issue (advocates notified but not available)
On appeal from
Chief Magistrate's Court, Nakuru
Civil Case Number 1339 of 2007
Jurisdiction invoked
Section 78 of the Civil Procedure Act (powers of the appellate court on first appeal)

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, "Edward K. Shakala v Rosemary Halubwa Shakala & Charles Foro Waweru", Case Analysis (2020). Not stated in the judgment (appeal from Nakuru Chief Magistrate's Civil Case Number 1339 of 2007). Source: 

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