(b) a person of dishonourable conduct.(c ) A person not fit to practice law.(d) A person who had gone into hiding after receiving legal fees.(e) A fugitive who had to be traced by the relevant authorities.(f) A person who is the sole cause of the sufferings of the clients.This Court has given due consideration to those innuendos and considered them in the light of thedefence put forward by the defence, both in their pleadings and secondly those raised by them in theirsubmissions namely:-(a) Fair comment(b) Justification- Page 31/36
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MARTIN TINDI KHAEMBA v STANDARD NEWSPAPERS  eKLR(c) Failure to offer a reply, and proceeds to make the following findings on the same.On fair comment, the central theme in Section 15 is that such a defence will not fail “by reasononly that the truth of every allegation of fact is not proved If the expression of opinion is fair commenthaving regard to such of the facts alleged or referred to in the words complained of as oreproved”.(emphasis own).This Court has already ruled on the issue of fair comment herein in this judgment, to the effectthat in order to succeed the truths proved must be central to the theme of the publication. This court hasmade a finding when dealing with the particulars of the truths pleaded in paragraph 5 of the defence thattruths, proved were not central to the publication. The untruths not proved were the ones which werecentral to the publication. For this reason the defence of fair comment pleaded by the defence has beenousted. The general rule is that it has to be anchored on correct information. Herein it is anchored onincorrect information.As for the other two defences of justification, and failure to furnish a reply by the plaintiff, it isconceded by this court as submitted by the Plaintiff’s Counsel, that a party is bound by his pleadings.However failure to so plead does not bar the court from considering the same in the light of the pleadingsherein, since they are matters touching on points of law. Order 6 rule 7 of the Civil Procedure Ruleprovides “a party mayby his pleading raise any point of law”the operative word here is ‘May”. The useof this word gives a leeway to the defendant to plead the points of law or not. Existence of this lectiongives room for the defendant or plaintiff to raise points of law even if not pleaded. It is therefore thefinding of this Court that the defence was justified in raising them at the submission stage. The onlyhurdle they have to pass is a demonstration on that them same is available to then or not.Justification is provided for in Section 14 of the Act. The central theme in this Section is that theallegation must contain 2 or more distinct charges against the plaintiff.(b) It is not necessary to prove all the charges.(c) It is available if the words not proved to be true do not materially injure the reputation ofthe plaintiff having regard to the truths of the remaining charges.(emphasis own).
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