[1986] KECA 77 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAKURU

(Coram: Hancox, Nyarangi, JJ A and Gachuhi, Ag JA)

CIVIL APPEAL NO 98 OF 1985

BETWEEN

STAGS HEAD HOTEL LIMITED ………….…...................... APPELLANT

AND

SUPADUKA NAKURU LIMITED ……………..................... RESPONDENT

(Appeal against the Ruling of the High Court of Kenya at Nakuru (Omolo, J )

dated July 18, 1985

In

High Court Civil Case No 146 of 1984

______________

JUDGMENT OF THE COURT

Mr Githua has saved the time of this court by conceding that the defendant / appellant should have been given leave to defend as to the dispute amount, Kshs 830,000. 00, as there were triable issues in relation to it. The only issue for one determination now is that of costs.

Mr A B Shah to whom we are as always, indebted for his clear and reasonable submissions, urged us to follow the order made by Wambuzi, P of this court’s predecessor in Pindoria Const Co v Iron etc CoCivil Appeal, 16 of 1976, and give him the costs of his successful appeal while reserving the costs of proceedings in the High Court (which in that case was, in effect, a hearing by way of formal proof) to abide the decision on the trial.

In that case Mr Shah said the dilatoriness of the advocate concerned, Mr GS Pall, was shown by the fact that he did not apply to set aside for three months, whereas here Mr Owino Opiyo filed his application within two days. Moreover, Mr Shah said, Mr Owino Opiyo had all the weight and responsibility of conducting the defence of a brother advocate who was charged with a criminal offence and eventually went to prison. Again Mr Pall in the Mombasa case had 6 days notice whereas here Mr Owino Opiyo had only 1½ days.

All that may be so, but as Mustafa, JA said in Pindoria’s case all that was needed was a telephone call to ask someone to hold his brief in Nakuru, or even to Mr Githua to stay his hand. What understandably irritated Omolo, J in this case was that the defendant did not even attend the court, and we should be slow to criticise or reverse a judge who conscientiously tries to get on with his list and applies the normal rules as to hearing and attendance.

As was pointed out, the order 6 rule 13 application was served on February 18, 1985, so Mr O Opiyo knew it was in the wind. It was only the hearing notice which was late in service. We also appreciate that this was in substance, if not in form, an application for summary judgment, which, on one view of order 35 rule 1(3) requires 7 days notice. See also Order 50 Rule 4. But that provision means, in our opinion, that 7 days notice of the motion shall be given, not of its hearing, and in any case this was not an application under order 35, but under order VI rule 13. Having listened sympathetically to all Mr Shah has said to us, we are satisfied that this case is distinguishable on the facts from Pindoria’s case, and that Mr Githua having properly conceded the main appeal at the outset, his clients, the respondent should have half the costs of this appeal and the cost of the relevant proceedings in the High Court.

We therefore uphold the order of the High Court for judgment for the respondent / defendant for Kshs 650,000. 00, but set aside that part of it which relates to the balance of Kshs 830,000. 00 and give unconditional leave to defend as to that portion of the claim. We order that ½ the costs of this appeal, and the costs of the proceedings to set aside, (which is the only appeal before us) on the High Court, shall be paid by the defendant / appellant to the plaintiffs / respondents in any event. To this extent, then, is the appeal from Omolo, J’s decision of July 18, 1985 allowed.

Dated at Nakuru this 21st day of February, 1986.

ARW Hancox

Judge of Appeal

JO Nyarangi

Judge of Appeal

JM Gachuhi

Ag Judge of appeal

I certify that this is a true copy of the original.

DEPUTY REGISTRAR