Okwata & 2 others v Odenyo & 2 others (Civil Suit E003 of 2023) [2024] KEHC 16103 (KLR) (20 December 2024) (Ruling)
Neutral citation:
[2024] KEHC 16103 (KLR)
Republic of Kenya
Civil Suit E003 of 2023
DK Kemei, J
December 20, 2024
Between
Pheobe Okwata
1st Plaintiff
Dorothy Okwata
2nd Plaintiff
Timothy Peace Otieno
3rd Plaintiff
and
Martin Odera Odenyo
1st Defendant
Booker Odenyo
2nd Defendant
Spear & Shield Publishing
3rd Defendant
Ruling
1.The 1st and 2nd Defendants herein have filed a Notice of Preliminary Objection dated 3/1/2024 brought under section 4(2) of the Limitation of Action act and section 57 of the Interpretation and General Provisions Act, cap 2 laws of Kenya. The Defendants/applicants contend that the Plaintiffs suit is time barred by the said law provisions from filing a lawsuit premised on libel or slander after twelve months from the date on which the cause of action accrued.
2.The said Preliminary Objection was canvassed by way of written submissions. Both parties duly filed and exchanged their submissions.
3.Learned counsel for the 1st and 2nd Defendants submitted that the preliminary objection has been validly raised and that the same is in tandem with the principles enunciated in the case of Mukhisa Biscuits Manufacturing Co. ltd Vs. West End Distributors ltd (1969) E.A 696 where the court stated that “…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.’’
4.The Defendants /Applicants submitted that their Notice of preliminary objection meets the criteria in the Mukhisa Biscuit case (supra) as it raises a pure point of law which if determined will dispose of the suit.
5.It was the submissions of the 1st and 2nd defendants that the book subject matter of the suit namely ‘’Starring at Nyanza Sun: An American Memoir’’ was first published on September 16 2010(see www.nyanzasun.com). The suit by the Plaintiffs was filed on 16th November 2023, over 13 years after publication. It was submitted that section 4(2) of the limitation of Actions Act provides thus:
6.Based on the foregoing provision, it was submitted that the suit filed by the Plaintiffs is bad in law as the same was filed outside the limitation period. It was further submitted that the Plaintiffs did not seek leave of court to lodge the suit out of time and hence the same ought to be dismissed.
7.In rebuttal, learned counsel for the plaintiffs submitted that the Preliminary objection before court does not meet the threshold established in the case of Oraro vs. Mbaja (2005)1 KLR 141 where the court held:
8.Finally, learned counsel for the Plaintiffs submitted that the Preliminary objection lacks merit and that the same be dismissed with costs to the Plaintiffs.
9.I have given due consideration to the Preliminary objection, the rival submissions and the authorities cited. I find the only issue for determination is whether the Preliminary Objection raised by the 1st and 2nd Defendants has merit.
10.The issue of a preliminary objection was succinctly stated in the celebrated case of Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Co. Ltd [1969] E.A 696 as follows:
11.The 1st and 2nd Defendants have maintained that the suit offends the provisions of section 4(2) of the Limitation of Actions Act which provides as follows:It is noted that the same Limitation of Actions Act allows a party who is late in lodging a suit to file a suit out of time if he/she seeks leave from the court. This is found in section 27 of the said Act which provides as follows:
12.It is noted from the averments and pleadings by the Plaintiffs that the issue of the Publishing of the defamatory book took place sometimes in the year 2010. That being the position, then the Plaintiffs ought to have sought leave from the court so as t file the suit out of time. There is no evidence that such a leave was obtained as the Plaintiffs have not averred that they did so prior to the filing of this suit. In the case of Willis Onditi Odhiambo Vs Gateway Insurance Co. Ltd [ 2013] eKLR the Court of Appeal held as follows;
13.The Plaintiffs on the other hand have maintained that the preliminary objection raised herein requires facts to be ascertained and further seeks the exercise of judicial discretion. Indeed, as was held in the case of Oraro Vs Mbaja [200] KLR 141 the objection should not deal with disputed facts that must be tested by rules of evidence.
14.Even though the foregoing is the position, I find that it is appropriate to look at the pleadings and averments and ensure that the facts as pleaded by the opposite side are correct or that they have the agreed facts. I have looked at the plaint dated 16/11/2023 and that there are averments by the Plaintiffs herein through their witness statements dated 16/11/2023 wherein they have stated inter alia; that the defamatory book was published in 2010 and that the defendants hold the copyrights; that they wrote a protest letter to the 1st Defendant concerning the offending accounts in the book to which the said 1st Defendant acknowledged and admitted the wrongdoing; that they wrote a second protest letter seeking that the 1st Defendant withdraws the offending book and or reviews the book and remove the characters and that the said 1st Defendant agreed and undertook to rectify the anomaly.
15.The 1st and 2nd Defendants in their statement of defence dated 2/1/2024 have admitted certain paragraphs of the plaint as well as denied others. It is not in dispute that a careful perusal of the Plaint as well as the defence leaves no doubt that the facts as pleaded by the other side are correct. This then, bolsters any of the parties to raise a Preliminary Objection on point of law at any stage of the proceedings.
16.Looking at the facts as pleaded by each side, it is clear that the issues are as clear as the blue sky. It is not in dispute that the Plaintiffs are agreed that the offending book was published in the year 2010. The Plaintiffs have moved this court thirteen years after the alleged defamation. The Plaintiffs have not presented evidence to the effect that they sought leave from the court for extension of time to lodge the suit as the tort of defamation requires an aggrieved party to file suit within twelve months as provided for under the Limitation of Actions Act. I find the over ten years period of inaction to be inexcusable in the circumstances. Consequently, iam inclined to agree with the Defendants’ claim that the suit is time barred.
17.In view of the foregoing observations, it is my finding that the 1st and 2nd Defendants’ preliminary objection dated 2nd January 2024 has merit. The same is allowed as prayed with the consequence that the Plaintiffs’ Notice of Motion dated 16th November 2023 as well as the Plaint dated 16th November 2023 are hereby struck out with costs to the 1st and 2nd Defendants.
DATED AND DELIVERED AT SIAYA THIS 20TH DAY OF DECEMBER, 2024D. KEMEIJUDGEIn the presenceNgara……………………….for PlaintiffsOgada…………………for 1st & 2nd DefendantsN/A…………………………………3rd DefendantOgendo …………………………..Court Assistant