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Court of AppealAllowedCivil Application No. Nai. 223 of 2000 (UR 99/2000)

WACHIRA WARURU & ANOTHER V FRANCIS OYATSI [2000] KECA 179 (KLR)

Court of Appeal
18 August 2000
RKR.O. KwachAAA.M. AkiwumiASA.B. Shah
1,180 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a defence cannot be struck out just because the defendant skipped the hearing, and paused the defamation case pending appeal.

What this practically means

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Executive summary

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The applicants, the Editor-in-Chief of the East African Standard and the newspaper's publisher, sought a stay of further proceedings in a defamation suit brought by Francis Oyatsi, formerly Deputy General Manager (Finance) of Mumias Sugar Company, pending Civil Appeal No. 111 of 2000. The High Court (Patel, J) had, on 2nd December 1999, struck out the applicants' defence and entered judgment on liability in their absence, and later refused to set aside that ex-parte ruling. The Court of Appeal (Kwach, Akiwumi and Shah, JJ.A) held it arguable that the judge ought to have considered the reasons for counsel's non-appearance, that the delay in applying to set aside the ruling was not necessarily inordinate given the court vacation during which time is suspended, and that a defence raising fair comment and justification should not be struck out merely because unopposed. The court also rejected the submission that publication of an apology amounted to an admission extinguishing all defences. Satisfied that the appeal was arguable and that proceeding with the assessment of damages would render the appeal nugatory, the court allowed the application under rule 5(2)(b) and stayed all further proceedings in H.C.C.C. No. 1225 of 1999 until the hearing and determination of Civil Appeal No. 111 of 2000, with the costs of the application to abide the result of that appeal. The ruling binds subordinate courts on the duty to evaluate unopposed striking-out applications and on the treatment of vacation periods in assessing delay.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have an arguable appeal against the refusal to set aside the ex-parte ruling of 2nd December 1999 striking out their defence
  2. 2.Whether, unless a stay of further proceedings is granted, the intended appeal (Civil Appeal No. 111 of 2000) would be rendered nugatory

Key legal issues

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01

Whether a defence should be struck out merely because it is unopposed

Holding

No. The judge must consider the points raised in the defence and determine whether they constitute a reasonable defence, even where the application is unopposed.

Reasoning

The learned judge struck out a defence raising fair comment and justification without setting out the points in issue or explaining why the defence should be struck out. The court held that an unopposed striking-out application still requires the judge to evaluate whether the defence raises reasonable triable issues; the absence of the defendant does not relieve the court of that duty.

p. 2
02

Whether the refusal to set aside the ex-parte ruling was a proper exercise of discretion

Holding

It is arguable the judge erred: he failed to consider the reason for counsel's non-appearance and wrongly treated the delay as inordinate without accounting for the court vacation.

Reasoning

The applicants explained that service was not diarised, so counsel was unaware of the hearing date, and that the failure to attend was neither deliberate nor intended to delay justice. The court found the delay between 13th December 1999 and 11th January 2000 spanned the vacation, during which time is suspended, so the delay may not have been inordinate.

p. 2
03

Whether the twin criteria of rule 5(2)(b) - arguable appeal and nugatory effect - were satisfied

Holding

Yes. The appeal was not frivolous, and proceeding with the assessment of damages would render the appeal nugatory if it succeeded.

Reasoning

The court identified several arguable points on the setting-aside ruling and held that if damages were assessed while the appeal was pending, the process would be an exercise in futility should the appeal succeed. Both limbs of the rule 5(2)(b) jurisdiction were therefore met and a stay of further proceedings was warranted.

p. 2

Legal principles established

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  • A defence raising triable issues such as fair comment or justification should not be struck out merely because the defendant did not appear to oppose the striking-out application; the court must consider whether the defence is reasonable.
  • An ex-parte order obtained in a defendant's absence should be set aside where the reason for non-appearance is bona fide and the delay in applying to set it aside is not inordinate; the court must consider the reasons advanced for non-appearance.
  • The court's vacation period, during which time is 'suspended' and courts are not open for normal business, is relevant in assessing whether a delay in applying to set aside an order is inordinate.
  • Publication of an apology by a defendant does not, without more, extinguish defences such as fair comment or justification.

Court orders

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  1. 1.Stay of any further proceedings in H.C.C.C. No. 1225 of 1999, including the assessment of damages, until the hearing and determination of Civil Appeal No. 111 of 2000
  2. 2.Costs of the application to abide the result of Civil Appeal No. 111 of 2000

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
AA
majority
AS
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1225 of 1999
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A defence which raises several issues, in this case the defences of fair comment, justification etc, should not be struck out just because the defendant has not appeared to oppose the application by the plaintiff to strike it out.
p. 2striking out defences - unopposed applications
The learned Judge should have considered the points raised in the defence and determine whether or not they constituted a reasonable defence to the plaintiff's claim.
p. 2duty to consider triable issues
We bear in mind the fact that the court was on vacation from 21st December, 1999 to 13th January, 2000 during which period time remains "suspended" and courts are not open for normal business.
p. 2vacation period and inordinate delay
We allow this application and order a stay of any further proceedings in H.C.C.C. NO. 1225 OF 1999 until the hearing and determination of Civil Appeal No. 111 of 2000.
p. 2final orders - stay of proceedings

Issues in the judgment

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minor

The judgment text contains typographical corruption where two passages overlap, obscuring parts of the narrative.

minor

The judgment text contains typographical corruption in the passage describing the apology and the hearing of the application.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "WACHIRA WARURU & ANOTHER V FRANCIS OYATSI [2000] KECA 179 (KLR)", Case Analysis (2000). Civil Application No. Nai. 223 of 2000 (UR 99/2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/179/eng@2000-08-18

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