[2001] KEHC 581 (KLR)
The court held that the distinction between a set-off and a counter-claim is extremely fine, and for the purposes of assessment of court fees, both are undistinguishable. In the present case, the set-off pleaded by the defendant lacked the characteristics of a true set-off and was, in substance, a counter-claim....
Source-derived case information.
- Citation
- [2001] KEHC 581 (KLR)
- Parties
- Plaintiff: Pan Africa Paper Mills (E.A.) Limited; Defendant: Afri Packaging & Printing Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2202 of ??
- Procedural Posture
- Civil Case / Ruling on Application for Refund of Filing Fees for Set Off
- Outcome
- application dismissed
- Judges
- T Mbaluto
- Legal Topics
- Set Off Vs Counter Claim, Court Fees Assessment, Pleadings, Filing Fees Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pan Africa Paper Mills (E.A.) Limited
Plaintiff
Afri Packaging & Printing Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Refund of Filing Fees for Set Off
Legal Issues
- 1 Whether a set-off in a defence is distinguishable from a counter-claim for purposes of court filing fees assessment.
- 2 Whether the defendant was properly charged filing fees for the set-off pleaded in its defence.
Ratio Decidendi
The court held that the distinction between a set-off and a counter-claim is extremely fine, and for the purposes of assessment of court fees, both are undistinguishable. In the present case, the set-off pleaded by the defendant lacked the characteristics of a true set-off and was, in substance, a counter-claim. Therefore, the defendant was properly charged filing fees for the set-off, and the application for a refund of the filing fees lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for a refund of filing fees for the set-off is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 2202 OF 2000
PAN AFRICA PAPER MILLS (E.A.) LIMITED ……..…. PLAINTIFF VERSUS AFRI PACKAGING & PRINTING LIMITED ……….. DEFENDANT
RULING
This matter has been referred to me under Rule 2(3) of The High Court (Practice and Procedure) (Amendment) Rules 1995. The reference arises from a claim for Shs.6,061,125/= by the Pan African Paper Mills (E.A.) Limited against Afri Packaging & Printing Limited in respect of which the defendant in its defence sought to set-off as against any sums which it might have been found to pay to the plaintiff, the sum of Shs.4,343,162/= it claimed in the defence was due to it from the plaintiff on account of various alleged failures and misdeeds relating to a contract between the two parties.
On the filing of the defence and set-off, the defendant was charged by the High Court Registry a filing fee of Shs.70,075/= pursuant to the provisions of paragraph 3(b) of the Schedule to Part IX of The High Court (Practice and Procedure) (Amendment) Rules 1995. Mr. Hira for the defendant now contends that a set-off is not a counter-claim but in truth a defence and therefore he should not have been charged a filing fees for the set-off. He therefore seeks a refund of the sum of Shs.70,000/= that was charged.
Mr. Hira did not cite any authority for his contention and with due respect, I do not think he is right. A set-off is defined in the concise Law Dictionary as:-
“A claim in a liquidated amount by t he defendant to a sum of money as a defence to the whole or part of a money claim by the plaintiff … whether or not it is added as a counter -claim.”
In Blacks Law Dictionary, the same word is defined as:-
A counter -claim demand which the defendant holds extrinsic of plaintiff’s cause of action.”
It will be obvious from the above definitions that the difference between a counter-claim and a set-off is extremely fine. It can nonetheless be said that in general terms both are counter-claims to a claim by a plaintiff. For the purposes of assessment of court fees both are in my view undistinguishable and consequently court fees are assessed on both in like fashion. Apart from that however, in the instant case the so-called set-off made in the defence lacks every characteristic of a set-off and is in all respects but name, a counter-claim. In the circumstances, the defendant was properly charged filing fees for the set-off and accordingly his complaint in respect thereof has no merit.
For the above reasons, the application for a refund is dismissed.
Dated at Nairobi this 31st day of July, 2001.
T. MBALUTO
JUDGE