[1951] EACA 334

## ORIGINAL CIVIL

#### Before de LESTANG, J.

# D. E. HASTWELL, Plaintiff

#### v.

## AIR TRAVEL (CHARTERS) LTD., Defendant

### Civil Case No. 106 of 1951 (Mombasa)

Costs on counter-claim—Rule 42 Rules of Court.

The Court allowed the plaintiff Sh. 6,998 damages and the defendant Sh. 2.104 on its counter-claim, though out of the latter amount in its judgment is set off Sh. 998 from the damages allowed to the plaintiff on an appeal regarding costs of the counter-claim which the taxing master allowed on the Supreme Court scale.

Held (26-9-51).—(1) The counter-claim was a cross-claim and must be taken as a whole to ascertain the amount recovered thereunder.

(2) Rule 42 Rules of Court Vol. V Subsidiary Legislation p. 461 was never intended to apply to a counter-claim, for a person who pleads a counter-claim does not select the tribunal.

(3) The counter-claim was in effect successful as to Sh. 2,104 and costs are allowed on the Supreme Court scale.

Cases referred to: Chatfield v. Sedgwick, 4 C. P. D. 459; Stooke v. Taylor (1880) 5 Q. B. D. 569, 580.

S. F. Hassan for plaintiff.

$\frac{1}{2} \frac{1}{\sqrt{2}}$

A. C. Satchu for defendant.

RULING.—This is an appeal from the decision of the Deputy Registrar, as taxing officer, allowing the defendant costs on the Supreme Court scale. It arises in the following circumstances: The plaintiff instituted proceeding in the Supreme Court claiming damages from the defendant for wrongful dismissal. The defendant denied the claim and counter-claimed for damages for breach of contract and for the recovery of certain sums of money (admitted by the plaintiff at the trial to amount to Sh. 998) due by plaintiff to defendant.

The Court allowed the plaintiff Sh. 6,998 damages on his claim. It also allowed the defendant Sh. 2,104 on its counter-claim, i.e. Sh. 1,106 as damages and Sh. 998 being the amount admitted due by the plaintiff to the defendant. The Court, however, in its judgment set off Sh. 998 from the liquidated damages awarded to the plaintiff and gave judgment for him for Sh. 6,000 with costs. It also entered judgment for Sh. 1,106 only for the defendant in respect of his counter-claim with costs. In these circumstances the plaintiff contends that under rule 42 of the Rules of Court (Laws of Kenya, Subsidiary Legislation, Volume V, page 461) the defendant is only entitled to Subordinate Court's costs. Rule 42 reads as follows:-

"42. In causes or matters which having regard to the amount recovered or paid in settlement or the relief awarded could have been brought in a resident magistrate's or other subordinate court costs on the scale applicable to subordinate courts only shall be allowed unless the judge at the trial otherwise orders."

I am unable to agree with plaintiff's contention that the defendant only recovered Sh. 1,106 and is thus not entitled to Supreme Court costs. In my view, the counter-claim being to all intents and purposes a cross action must be

taken as a whole in order to ascertain the amount recovered thereunder. Thus what the defendant recovered was not merely Sh. 1,106 for which judgment was given for him but Sh. 1,106 plus Sh. 998 which went to extinguish part of the plaintiff's claim. As these two amounts together exceed the pecuniary jurisdiction of the subordinate court the defendant is entitled to costs on the Supreme Court scale. I think that this view is supported by authority. In Chatfield v. Sedgwick, 4 C. P. D. 459 the plaintiff sued the defendant for £57 10s. but on a reference to a master established his claim to the extent of only £16 1s. 5d. The defendant on his counter-claim established a claim against the plaintiff to £23, thus making a balance in his favour of £6 18s. 7d. It was held that while the plaintiff, having recovered less than £20, was disentitled to costs by section 5 of the County Courts Act of 1867, the defendant, not coming. under the operation of that Act, was, though he recovered only £6 18s. 7d. entitled to the costs of his counter-claim. In expressing agreement with this decision Cockburn C. J. in Stooke v. Taylor, (1880) 5 Q. B. D. 569 at page 580 said this: $-$

"This decision was in my opinion perfectly correct. Claim and counterclaim being for liquidated damages, to the extent to which the amount established by the defendant was co-extensive with, and so operated to extinguish the plaintiff's claim, the counter-claim operated as a set off: in reference to the amount by which it exceeded the plaintiff's claim, it operated as a cross-action, recovering in which the defendant would be entitled to his costs. A fortiori would this be the case if the counter-claim is to be treated as a cross-action to the full extent of the defendant's demand."

This is another reason why the appellant's contention must fail. In my view rule 42 does not apply and was never intended to apply to a counterclaim. Firstly, a counter-claim can only be brought in the Court in which the suit is brought. Secondly, rule 42 must be read subject to section 11 Civil Procedure Ordinance and must not be interpreted so as to extend the provision of the Ordinance. It is clear that section 11 Civil Procedure Ordinance does not apply to counter-claim. This section is substantially the same as section 47 (1) County Courts Act, 1934, which has been held not to apply to a counterclaim (vide White Book, 1950, page 3553).

If I am right in the view I hold that rule 42 does not apply to a counterclaim then the position of a defendant who succeeds on a counter-claim is the same here as it is in England. That position is succinctly stated in White Book page 3567 as follows: $-$

"A defendant who pleads a counter-claim does not select the tribunal; therefore if he succeeds on his counter-claim in a High Court action he is entitled to the costs occasioned by his counter-claim, however small the amount he recovers: Amon v. Bobbett 22 Q. B. D. 543, Blake v. Appleyard, 3 Ex. D. 195; Chatfield v. Sedgwick, 4 C. P. D. 459."

For these reasons this appeal fails.

I should add that I am happy to have been able to come to this decision because it was my intention in awarding costs to the defendant that those costs should be taxed on the Supreme Court scale and had I been asked to clarify the position when the judgment was delivered I should certainly have directed that costs should be taxed on the Supreme Court scale.

This appeal is accordingly dismissed with costs.