Wakilii

Singh v Notkin (Civil Appeal No. 2 of 1952)

East African Court of Appeal · [1952] EACA 117 · 1952 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from interlocutory ruling of H.M. Supreme Court of Kenya refusing to strike out defamation pleadings
Decision
Matter remitted to trial court to determine whether the words complained of are defamatory and actionable per se

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the power to strike out pleadings under Order 6 rule 29 is discretionary and should be exercised only in plain and obvious cases. The trial court should determine whether words alleging non-payment of debts by a trader are defamatory and actionable per se. The Judge's refusal to strike out the defamation claim was upheld. However, the prayer for a public apology was struck out as it is not a remedy available in defamation actions where damages are awarded.

Outcome

Matter remitted to trial court to determine whether the words complained of are defamatory and actionable per se

Facts

The respondent, a building contractor in Nairobi, sued the appellant for defamation and assault. The appellant allegedly stated at a petrol station in the presence of employees: "This man does not pay his debts, he owes me Sh. 25,000 and does not pay it." The statement was preceded by obscene abuse. The appellant moved to strike out certain paragraphs of the plaint under Order 6 rule 29, arguing the words disclosed no reasonable cause of action. The Supreme Court Judge refused the application. The appellant appealed, contending the words were not defamatory and not actionable per se without proof of special damage.

Issues

  1. Whether the learned Judge was right in refusing to strike out paragraphs of the plaint on the ground that the words complained of disclosed no reasonable cause of action.
  2. Whether the words alleged to have been spoken were capable of a defamatory meaning.
  3. Whether the words were actionable per se without proof of special damage.
  4. Whether the prayer for a public apology should have been struck out.

Orders

  • Appeal dismissed save as to striking out the prayer for public apology.
  • Appellant to pay four-fifths of the costs of the appeal.
  • Appellant to pay four-fifths of the costs of the motion in the Court below.

Rules and key headnotes

Civil Procedure — Striking Out Pleadings — Discretionary Power — Exercise in Plain and Obvious Cases Only
The power to strike out pleadings under Order 6 rule 29 is discretionary and should not be exercised save in plain and obvious cases where the pleading discloses no reasonable cause of action.
Tort Law — Defamation — Words Capable of Defamatory Meaning — Function of Court on Interlocutory Motion
On an interlocutory motion to strike out a defamation claim, the court's function is not to definitively determine whether words are capable of a defamatory meaning, but to decide whether the case is so plain and obvious that no reasonable cause of action is disclosed. Where doubt exists, the matter should proceed to trial.
Tort Law — Defamation — Actionable Per Se — Trader or Business Person — Statement Concerning Trade or Business
A defamatory statement concerning a trader or business person will be actionable per se if it concerns them in the way of their trade or business and is calculated to convey an imputation disparaging or injurious to them therein, without proof of special damage.
Tort Law — Defamation — Statement That Person Does Not Pay Debts — Whether Defamatory
A mere statement that a person owes money is not per se defamatory. However, a statement that a trader "does not pay his debts" may be held defamatory as it implies habitual evasion of payment and lack of honesty, distinguishing it from a bare assertion of indebtedness.
Tort Law — Defamation — Remedies — Public Apology — Not Available Where Damages Awarded
A prayer for a public apology in a defamation action should be struck out as it is not a remedy a court will order where damages have been awarded. Damages for defamation are a solatium for injured feelings, and a plaintiff receiving such damages cannot impose additional conditions on the defendant.

Legislation cited (3)

  • Kenya Civil Procedure Rules Order 6 rule 29
  • Kenya Civil Procedure Rules Order 6 rule 17
  • Kenya Civil Procedure Rules Order 6 rule 27

Cases cited (1)

  • Moore v Lawson (31 T.L.R. 418)

Full judgment

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Singh v Notkin (Civil Appeal No. 2 of 1952) [1952] EACA 117 (1 January 1952)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.