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Kabuito Contractors Limited v. David Mukii Mereka t/a Mereka & Co Advocates

(2003) JELR 100296 (CA)

Court of Appeal  •  Civil Appeal 240 of 2001  •  11 Jul 2003  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Philip Kiptoo Tunoi, Moijo Matayia Ole Keiwua

Judgement

IN THE COURT OF APPEAL

AT NAIROBI

(Coram: Omolo, Tunoi and Keiwua JJ A)

CIVIL APPEAL NO 240 OF 2001

KABUITO CONTRACTORS LIMITED .......................................APPELLANTS

VERSUS

DAVID MUKII MEREKA T/A MEREKA and CO ADVOCATES....RESPONDENTS

(An appeal from an order of the High Court of Kenya at Nairobi

(Khamoni J) dated 6th July, 2001 in HCCC No 1451 of 2000)

JUDGMENT

The short point which arises for our determination in this appeal is the interpretation to be given to rules 2 and 11 of order VIII of the Civil Procedure Rules. Those rules provide:

“2 A defendant in a suit may set-off, or set up by way of a counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit, both on the original and on the crossclaim; but …

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