In February, the Nakuru Magistrate’s court ordered Vincent Mabatuk to pay his former boss Alex Kiprotich Sh8 million for defamation.
The court heard that the two fell out in the run up to the 2017 General elections where Mabatuk who was working as reporter called Kiprotich names in a series of Facebook posts prompting the former Rift Valley regional editor to seek legal redress.
“Finally, the office you see belong to the Standard Group situated at the second floor of Merica Hotel building. The guy being boarded is the notorious KANU slay queen Lex K Ander aka Alexander Kiprotich Chepkoit…,” Mabatuk wrote in 2017
Alex Kiprotich sued Vincent Mabatuk.
In Court, Kiprotich argued ‘psychological and emotional distress’ and demanding damages for cost of the legal suit, and any other remedy the court deemed fit. He also demanded that Mabatuk apologise and retract the his words.
After three years, Chief magistrate JB Kalo ordered the accused to pay his accuser Sh6 million for general damages and another Sh2 million for the costs of the case.
“On the quantum of damages payable, the court has considered the submissions by the counsel and the authorities relied on. The court has also considered comparable case law,” Kalo said.
However, Mabatuk immediately launched a defence and filed a notice of motion application seeking to set aside the judgment and all consequential orders and praying that proper service be effected upon the defendant by the plaintiff.
The court on Tuesday set aside judgement requiring Vincent Mabatuk to pay Alex Chepkoit Kiprotich Sh8 million.
Below is the full judgement:
REPUBLIC OF KENYA
IN THE.C.H1EF MAGISTRATE’S COURT AT NAKURU
CIVIL SUIT NO. 309 OF 2018
ALEX CHEPKOIT KIPROTICH – PLAINTIFF
VINCENT MABATUK – DEFENDANT
This matter proceeded way of formal proof and judgment was delivered in 25th February 2020.
On 29th May 2020, the firm of Nyagaka S.M. & Co Advocates acting for the defendant filed a Notice of Motion application seeking to set aside the judgment and all consequential orders and praying that proper service be effected upon the defendant by the plaintiff.
The said firm of Advocates also filed a Notice of Appointment of Advocates
The plaintiff filed a Replying Affidavit and simultaneously filed a preliminary objection that the Notice of Motion application dated 28th May 2020 is incompetent. Since the Preliminary Objection has the potential to determine the application in its entirety and is based on a point of law, the court shall consider and determine it first.
In his submissions in support of the application, the plaintiff’s counsel has submitted as follows.
- Order 9 Rule 7 of the Civil Procedure Rules provides that
Where a party after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modifications.
- Order 9 Rule 5 of the Civil Procedure Rules provides that:
The court agrees with the submissions by counsel for the defendant that Order 9 Rules 5, 7, 9 and 10 of the Civil Procedure Rules that the plaintiff has relied on are not applicable in the instant case. As is clear from the wording of the said provisions none of the scenarios contemplated by the provisions obtains in the instant case. Indeed, there is on record a Notice of Appointment of Advocates duly filed by counsel for the defendant.
The preliminary objection is therefore dismissed with costs to the defendant.
Ruling signed, dated and delivered electronically this 13th day of October 2020.
CM Chief Magistrate
CM Chief Magistrate
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