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Kabuito Contractors Ltd v. David Mereka t/a Mereka & Company Advocates

(2004) JELR 98260 (CA)

Court of Appeal  •  Civil Appeal No 240 of 2001  •  22 Jan 2004  •  Kenya

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



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 cross-claim; but the court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.”

“11. Where a defendant sets up a counterclaim, if the plaintiff or any othe…

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