Grace Wangui Ngenye v Chris Kirubi & another [2015] KECA 152 (KLR)
The bottom line
#Kenya's Court of Appeal held a radio company liable in defamation because its defence was legally invalid, while shielding its CEO from personal liability.
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 High Court erred in striking out the name of the 1st respondent from the suit for improper joinder
- 2.Whether the High Court erred in dismissing the appellant's application to strike out the respondents' defence and enter judgment on liability
- 3.Whether the defence of fair comment and qualified privilege disclosed valid defences in law or triable issues
Key legal issues
#Improper joinder of a chief executive officer in a defamation suit against a corporation
The joinder was vexatious; the mere fact that the 1st respondent was chief executive officer of the 2nd respondent did not render him personally liable for the corporation's tort.
The plaint contained no averments linking the broadcast personally to the 1st respondent, such as that he controlled editorial policy or caused the publication. Facts asserted for the first time in a replying affidavit could not form part of the cause of action pleaded. The trial court was properly guided by the averments in the pleadings, and a suit against him based solely on his office was vexatious.
Effect of admissions in the defence on the need for proof at trial
Where publication, its content, and reference to the plaintiff are admitted, the plaintiff need not prove those facts at trial; malice and falsity are presumed in defamation where no special plea requires proof.
The 2nd respondent admitted publishing the quoted words and did not deny they referred to the appellant in connection with her profession and character. Under the defamation pleading rules, a plaintiff alleging malice need not give particulars in the plaint, and the law presumes malice and falsity unless defences such as fair comment or privilege are raised.
Availability of the defences of fair comment and qualified privilege
Neither defence was available in law: the words were misstatements of fact rather than expressions of opinion, no justification was pleaded, and the publication did not fall within the categories of qualified privilege in the Defamation Act.
Fair comment requires true or substantially true underlying facts, which cannot be proved without a plea of justification, and requires comment rather than misstatement of fact. Qualified privilege is a question of law, and section 7 of the Defamation Act read with its Schedule does not cover this radio broadcast.
Strike-out of a defence that discloses no valid defence or triable issue
Where the defences pleaded are invalid in law and no triable issues arise, the defence ought to be struck out and judgment entered on liability.
Applying the general strike-out principles (DT Dobie) together with the special defamation pleading rules and the Defamation Act, the court found the broadcast's words plain and unambiguous, carrying defamatory imputations, with the defence disclosing no triable issues. Judgment on liability was entered with damages to be assessed.
Legal principles established
#- An action for defamation is a personal action; the proper defendant is the person who published, caused publication, or ratified the publication, and a company's chief executive is not personally liable merely by reason of that office
- Where a plaintiff in defamation relies on the natural and ordinary meaning of the words and the fact of publication is admitted, no oral evidence is needed to prove defamation or malice
- A plea of fair comment must be based on facts that are true or substantially true, which in turn requires a plea of justification; the words must also be capable of being an expression of opinion
Court orders
#- 1.The appeal against the 1st respondent is dismissed
- 2.The appeal against the 2nd respondent is allowed
- 3.The Ruling of the High Court dated 1st October 2009 relating to the application to strike out the 2nd defendant's defence is set aside and substituted with an order allowing the appellant's application dated 16th February 2006 to strike out the defence, with costs to the appellant
- 4.Judgment is entered against the 2nd respondent on liability and the suit as against the 2nd respondent is to be set down for proof of damages
- 5.The costs of the 1st respondent both in the High Court and in this Court are to be met by the 2nd 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. 1009 of 2005
- Jurisdiction invoked
- First appellate appeal from the High Court under the Civil Procedure Act/Court of Appeal's appellate jurisdiction (not expressly stated in the judgment)
Relief refused
#Reinstatement of the 1st respondent (Chris Kirubi) as a party to the suit
No averments in the plaint linked the defamatory broadcast personally to the 1st respondent beyond his position as Chief Executive Officer of the 2nd respondent
Costs
The appeal against the 1st respondent is dismissed with the 2nd respondent to bear the 1st respondent's costs both in the High Court and in this Court; the appellant's application to strike out the 2nd respondent's defence is allowed with costs to the appellant; judgment on liability entered against the 2nd respondent with the suit to proceed to proof of damages.
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.
An action for defamation is intrinsically a personal action. The proper person to maintain an action is the person directly defamed.
The fact that the 1st respondent was the chief executive of the 2nd respondent does not, without more, render the 1st respondent personally liable for the tort of the corporation.
the appellant is not required to adduce evidence to prove that the words were published falsely and maliciously, for the law presumes those facts in her favour.
a fair comment must be based on facts that are true or substantially true. In the absence of plea of justification, the 2nd respondent would not be entitled to give evidence at the trial to prove that transfer of the appellant was associated with the death of the 50 people.
The Ruling of the High Court dated 1st October, 2009 as relates to the application to strike out the 2nd defendant's defence is set aside and substituted with an order that the appellant's application to strike the defence dated 16th February 2006 is allowed with costs to the appellant.
Judgment is entered against the 2nd respondent on liability and the suit as against the 2nd respondent shall be set down for proof of damages.
It is just that the costs of the 1st respondent both in the High Court and in this Court should be met by the 2nd respondent. It is so ordered.
Issues in the judgment
#The judgment variously describes the 1st respondent as 'Chief Executive' and as 'chairman' of the 2nd respondent, and inconsistently refers to the appellant as 'Grace Ikenya' in one passage when recounting the defence
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, "Grace Wangui Ngenye v Chris Kirubi & another [2015] KECA 152 (KLR)", Case Analysis (2015). Civil Appeal No. 40 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/152/eng@2015-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.