Charles Mwithalii v Julius Bariu M’Itobi [1988] KECA 132 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a defamation award because the judge relied on second-hand handwriting evidence nobody testified to, ordering a fresh trial.
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 judge erred in holding, on inadmissible evidence, that the appellant wrote and published the defamatory posters
- 2.Whether the document examiner's opinion evidence from the criminal proceedings, given without being called as a witness at the civil trial, was admissible
- 3.Whether section 34 of the Evidence Act (cap 80) was available to admit the document examiner's former testimony
- 4.Whether section 84 of the Evidence Act could displace the hearsay rule
- 5.Whether the judgment awarding damages for defamation could stand without legally admissible proof of authorship and publication
Key legal issues
#Admissibility of the document examiner's evidence from the criminal trial in the civil suit
The opinion evidence was hearsay and inadmissible; without it there was no legal evidence of authorship
The document examiner gave evidence in the criminal proceedings but was not called as a witness at the civil trial. His opinion as to authorship was therefore second-hand and inadmissible hearsay. Although the proceedings themselves were between the same parties and could theoretically have been admitted under section 34 of the Evidence Act (cap 80), no evidence established the factual conditions of that section, and the trial judge appeared unaware the former testimony was inadmissible.
Effect of section 84 of the Evidence Act
Section 84 merely creates presumptions as to genuineness of proceedings and evidence duly taken; it does not admit the content of the evidence
The respondent relied on section 84 to overcome the hearsay exclusion. The court held that because the magisterial proceedings were produced and signed, the court presumes the proceedings genuine and that the examiner's evidence was duly taken, but the section does not make the substance of that evidence admissible. Only section 34 modifies the hearsay rule, and its conditions were not met here.
Appropriate remedy where the judgment rests on inadmissible evidence
Rather than allowing the appeal outright, the court set aside the judgment and ordered a rehearing before a different judge, subject to costs thrown away
The court was unwilling to allow the appeal simpliciter because that might be read as endorsing a possibly serious libel on the respondent. Allowing a rehearing preserved both parties' interests: the appellant escaped a judgment resting on inadmissible proof, while the respondent retained the opportunity to prove authorship with legally admissible evidence.
Grounds challenging defamation, reference and quantum of damages
The court declined to pronounce on these grounds since they would be re-litigated at the rehearing
Ten grounds of appeal were argued, including challenges to whether the posters were defamatory, whether they referred to the respondent, and the excessiveness of the Kshs 30,000 award. Because the court ordered a fresh hearing before a different judge, it expressly refrained from expressing any view on these contentions, leaving them open for decision on the evidence at the retrial.
Legal principles established
#- Hearsay evidence is inadmissible to prove authorship of a defamatory publication; a document examiner's opinion from earlier proceedings cannot be relied upon unless he is called or the former testimony is admitted under section 34 of the Evidence Act
- Section 84 of the Evidence Act creates presumptions of genuineness of proceedings but does not modify the hearsay rule, unlike section 34
- A civil claim founded on authorship of defamatory documents must be proved by legally admissible evidence
Court orders
#- 1.Judgment of the High Court set aside and the case remitted to the High Court for rehearing by a different judge
- 2.Respondent to pay the costs thrown away as a condition of the rehearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- First appellate appeal from the High Court (not expressly stated in the judgment)
Relief refused
#Outright allowance of the appeal without more (which would have ended the suit)
The court considered that allowing the appeal simpliciter could be construed as an endorsement of a possibly serious libel of the respondent
Costs
The respondent to pay the costs thrown away; other costs implications reserved for the rehearing
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.
On May 21, 1987, we set aside the judgment in this case and remitted the record to the High Court for rehearing by a different judge
the opinion evidence of the document examiner who was not called as a witness before the court as to the author of the disputed documents was hearsay and was inadmissible in evidence on that ground
In our opinion, proof by legally admissible evidence that the offending documents were written and published by the appellant was essential to the success of the action
That section did not, unlike section 34, seek to modify the hearsay rule. We thought therefore that section 84 of the’Evidence Act in no way assisted the respondent
We therefore felt, that subject to the respondent paying the costs thrown away, the ends of justice would be met if the case is heard afresh
Issues in the judgment
#The judgment does not state the case number, neutral citation, or the full names of the parties; the parties are identified only descriptively ('the respondent was a businessman... the appellant was a teacher') and by a poster reference to 'J Bariu Ngoroko'
There is a discrepancy in the coram: J. M. Gachuhi is signed 'JUDGE' while Platt and Apaloo are 'JUDGE OF APPEAL', though the opening states 'Platt, Gachuhi & Apaloo JJA delivered the reasons for Judgment of the court'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Mwithalii v Julius Bariu M’Itobi [1988] KECA 132 (KLR)", Case Analysis (1988). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/132/eng@1988-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.