[2018] KEHC 10169 (KLR)
The court found that the defendant had not filed a counterclaim as required by the Civil Procedure Rules. The statement attached to the defence did not meet the definition or procedural requirements of a counterclaim, lacking both proper pleading and a supporting affidavit. As such, there was no counterclaim on...
Source-derived case information.
- Citation
- [2018] KEHC 10169 (KLR)
- Parties
- Plaintiff: Yara East Africa Limited; Defendant: Thirikwa Kamau t/a Muguna General Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 386 of 2010
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Judgment on Counterclaim
- Outcome
- application dismissed with costs to the plaintiff; pre-trial directions issued
- Judges
- MM Kasango
- Legal Topics
- Counterclaims, Pleadings Requirements, Summary Judgment, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yara East Africa Limited
Plaintiff
Thirikwa Kamau t/a Muguna General Enterprises
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Judgment on Counterclaim
Legal Issues
- 1 Whether the defendant has properly filed a counterclaim as required by the Civil Procedure Rules.
- 2 Whether the defendant is entitled to judgment on the alleged counterclaim.
- 3 Whether the application for judgment is misconceived or frivolous.
Ratio Decidendi
The court found that the defendant had not filed a counterclaim as required by the Civil Procedure Rules. The statement attached to the defence did not meet the definition or procedural requirements of a counterclaim, lacking both proper pleading and a supporting affidavit. As such, there was no counterclaim on record upon which judgment could be entered. The application for judgment was therefore misconceived, frivolous, and devoid of merit, and was dismissed with costs to the plaintiff. The court further directed the parties to comply with pre-trial procedures, including the exchange of witness statements and documents within 14 days.
Court Disposition
application dismissed with costs to the plaintiff; pre-trial directions issued
Orders
- The notice of motion dated 18 May 2017 is dismissed with costs to the plaintiff.
- The parties are ordered to comply with pre-trial procedure, including filing and serving witness statements cross-referenced to paginated documents within 14 days.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 386 OF 2010
YARA EAST AFRICA LIMITED............................................................PLAINTIFF
VERSUS
THIRIKWA KAMAU t/a MUGUNA GENERAL ENTERPRISES...DEFENDANT
RULING
1. The notice of motion dated 18th May 2017, is filed by Thirikwa Kamau t/a Muguna General Enterprises, the defendant which seeks the entry of judgment in its favour for ksh 2,418,050. With interest at 14% from the date of the debt.
2. That application is premised on the alleged counter claim filed by the defendant. I say the alleged counterclaim because no such counter claim has been filed as envisaged under Order 7 Rule 3 and 5 of the Civil Procedure Rules. In particular, Rule 5 of Order 7 requires a counter claim to be accompanied by an affidavit. The defendant did not file such an affidavit. However, the defendant filed attached to its defence a statement showing various amounts under the heading “Response to the Plaintiff’s Accounts” which statement is reproduced here under:
RESPONSES TO THE PLAINTIFF’S ACCOUNTS UNDER ORDER 18r 2, CPR AS PRESENTED BY THE CURRENT MD MR JOHN CRASKE’S EXHIBIT ‘JC 1’ IN HIS REPLYING AFFIDAVIT DATED 24/06/2015, FILED IN COURT SAME DAY
OUTSTANDING INVOICES PLAINTIFF DEFENDANT REMARKS
1. EAF05031966
-1,848,000. 00 Invoice and cheque written for the amount by MD, Mr Lode Vanhoutte and later cancelled upon realisation that the goods had not been supplied to the Defendant – see attached cancelled cheque in his handwriting.
2. EAF05074764 910,900. 00
3. EAF05095384
277,100. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0018
4. EAF05095385
257,200. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0017
5. EAF05095386
284,000. 00 KRA/ETR 22122004/00260A OF 16/09/2005 Fiscal receipt no. 0037
6. EAF05095387
275,200. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0015
7. EAF05095388 980,000. 00
8. EAF05095446
284,000. 00 KRA/ETR 22122004/00260A OF 19/10/2005 Fiscal receipt no. 0016
9. EAF05106049
280,000. 00 KRA/ETR 22122004/00260A OF 19/10/2005 Fiscal receipt no. 0075
10. EAF05106222
302,400. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0002
PAYMENTS
11.
940,050. 00 Offset against transport invoices 01/VAT CERT NO. 1480839
12.
554,000. 00 Offset against transport invoices 02/VAT CERT NO. 1481056
13.
155,000. 00 Cash deposit
14.
XXXXX Cheque 102848
3. Such a statement fails to qualify as a counter claim as correctly submitted by the plaintiff’s learned counsel. The Blacks Law Dictionary 8th Edition, defines counter claim as:
“a claim for relief asserted against an opposing party after an original claim has been made esp., a defendant’s claim in oppostion to or a set off against the plaintiff’s claim”.
4. The defendant’s statement, which is reproduced above, and bearing in mind that defination of counterclaim is a far cry of what can be termed as a counter claim. There is indeed no counter claim on record, filed by the defendant.
5. It is because of the above that I agree with the submissions of the plaintiff’s learned counsel that the application is misconceived, frivolous and devoid of merit.
6. Accordingly the orders of the court are:
a. The notice of motion dated 18 May 2017 is dismissed with costs to the plaintiff.
b. The parties are ordered to comply with pre-trial procedure, to that end, the plaintiff and the defendant shall within 14 days from today file and serve each other with witness statements which shall be cross referenced to the bundle of their pagenated documents.
c. At the reading of this ruling a hearing date of this suit shall be given.
DATED, SIGNED and DELIVERED at NAIROBI this20thday of September,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of
Court Assistant....................Sophie
........................................... for the Plaintiff
........................................... for the Defendant
MARY KASANGO
JUDGE