Aharub Ebrahim Khatiri v Nelson Marwa & another [2018] KECA 16 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot remove a named public officer from a defamation case before trial, because good faith can only be tested with him present.
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 learned Judge erred in striking out the name of Nelson Marwa as defendant at a preliminary stage of the defamation suit
- 2.Whether the Attorney General and the DPP were properly joined as defendant and interested party respectively
- 3.Whether the cross-appeal seeking dismissal of the entire suit under the Government Proceedings Act should be allowed
Key legal issues
#Striking out a named defendant in a defamation claim before trial
It was premature and erroneous to strike out Nelson Marwa's name before the matter was heard, since the claim was predicated on words spoken by him and his participation is necessary to determine whether the words were uttered and whether the actions were done in good faith.
The claim was in personam and founded on words allegedly spoken by Marwa at a press briefing. The Judge herself found it difficult to determine whether the words were uttered by him. Without the named defendant, the court could not effectually and completely adjudicate, nor could the appellant demonstrate the connection between the spoken words and the Government through the Attorney General.
Joinder of the Attorney General and the DPP
The learned Judge was correct to join the Attorney General as defendant and the DPP as interested party, and that part of the ruling is affirmed.
Claims for or against the Government are instituted against the Attorney General under section 12 of the Government Proceedings Act, and the investigations complained of were undertaken under the DPP's direction. Their presence was necessary for effectual adjudication under Order 1 Rule 10(2).
Immunity of a public officer under the National Government Coordination Act
Section 22 immunity for acts done in good faith in execution of official duty does not automatically extinguish a defamation claim against the officer; the issues of the nature of the claim and good faith require his participation at trial.
The Court quoted section 22 of the National Government Coordination Act and accepted the 1st defendant enjoys immunity for actions in execution of public duty. However, whether the actions were carried out in good faith, and whether the state would be responsible for damages, are matters requiring the officer's presence in the proceedings.
Cross-appeal for dismissal of the entire suit
The cross-appeal was disallowed; the suit remains sustainable with the 1st defendant back in the proceedings.
The AG argued that once the individual defendant was struck out, the in personam defamation remedy could no longer be sustained and the whole suit should be dismissed under section 40 of the Government Proceedings Act. The Court instead restored the 1st defendant, removing the premise of the cross-appeal, and held the state would settle any damages.
Legal principles established
#- A court may strike out or add parties under Order 1 Rule 10(2) of the Civil Procedure Rules, but where a claim in personam such as defamation is premised on words spoken by a named individual, that individual should not be removed from proceedings before trial where his presence is necessary for the court to effectually and completely adjudicate the matter and determine issues of good faith and official capacity.
- Substantive justice under Articles 50 and 159 of the Constitution enjoins courts not to remove from the seat of justice a party through whom a claim can alone be ventilated, and immunity of a public officer does not justify striking him out before trial where questions of good faith and the connection to the Government remain to be determined.
Court orders
#- 1.The appeal is allowed
- 2.The name of Nelson Marwa is restored so that the 1st defendant remains in the proceedings
- 3.The cross-appeal by the Attorney General is disallowed
- 4.Costs of the appeal shall abide the outcome of the civil suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No. 4 of 2017
- Jurisdiction invoked
- First appeal under the Civil Procedure Act against an interlocutory ruling of the High Court
Relief refused
#Cross-appeal seeking dismissal of the entire defamation suit
The Court found the appeal had merit and for the same reasons disallowed the cross-appeal
Costs
The costs of this appeal shall abide the outcome of the civil suit.
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.
For the aforesaid reasons we find merit in this appeal which we allow and for the same reasons we disallow the cross- appeal. The costs of this appeal shall abide the outcome of the civil suit.
we agree in this regard the learned Judge erred by striking the name of Nelson Marwa too early before effectually hearing the matter.
If the only way in which the appellant was to be able to ventilate his claim in a court of law was through the 1st defendant, in our view he should not be removed from the seat of justice
However the nature of the claim and the issue of whether the actions were carried out in good faith all require the participation of the 1st defendant.
We agree the learned Judge was spot on when she ordered the AG in whose name all civil claims for or against the government should be undertaken to be joined and also the DPP
Issues in the judgment
#The judgment at paragraph 10 cites 'section 156 (d) of the Constitution' although section 156 is a statutory provision of the Office of the Director of Public Prosecutions Act and not a constitutional article; the reference appears to conflate the two.
The coram spells the first judge's name 'VISRAM' while the signature block reads 'ALNASHIR VISRAM'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aharub Ebrahim Khatiri v Nelson Marwa & another [2018] KECA 16 (KLR)", Case Analysis (2018). Civil Appeal No. 31 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/16/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.