Kenya Commercial Bank Ltd v James Karanja [1981] KECA 25 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Order XVI rule 6, upon dismissal of a suit for want of prosecution, deprives a party of jurisdiction to litigate the same cause of action again as a counterclaim
- 2.Whether a counterclaim can revive a suit dismissed under Order XVI rule 6 or constitutes a fresh suit
- 3.Whether paragraph 3 of the respondent's defence was a bare denial contrary to the rules of pleading and liable to be struck out under Order VI rule 13
- 4.Whether paragraph 2 of the respondent's defence should be struck out
Key legal issues
#Effect of dismissal under Order XVI rule 6 on the cause of action and subsequent proceedings
Dismissal for want of prosecution does not extinguish the cause of action or oust jurisdiction; a fresh suit on the same cause of action is authorised, subject to limitation.
The object of the rule is to goad plaintiffs into pursuing suits diligently and avoid a backlog of unfinished litigation. The rule expressly authorises a fresh suit subject to limitation. The cause of action survives; only the proceeding is terminated. A counterclaim under Order VIII rule 2 has the same effect as a fresh cross-suit and may therefore be brought on the same cause of action without reviving the dismissed suit.
Whether paragraph 2 of Karanja's defence was maintainable
The second sentence of paragraph 2, alleging an attempt to revive a dismissed suit, was not a defence and was struck out.
The court held that a counterclaim is a fresh suit, not an attempt to revive the original matter. The last sentence of paragraph 2 therefore did not constitute a defence and the appeal succeeded to that limited extent.
Whether paragraph 3 of the defence was a bare denial
It was not: the respondent denied specific allegations and particularised one, which is sufficient in law.
Sometimes a party cannot do more than deny specific allegations; such denial is not a bare denial. A sensible view must be taken of pleadings, and a defendant should be allowed a fairly arguable defence so that the door of justice is not shut in his face. The High Court judge was right on this point and that part of his ruling was affirmed.
Legal principles established
#- Dismissal of a suit under Order XVI rule 6 for want of prosecution does not extinguish the cause of action nor deprive the court of jurisdiction to entertain a fresh suit on the same cause of action, subject to limitation.
- A counterclaim is a fresh suit and the defendant instituting it becomes plaintiff for all intents and purposes.
- A specific denial of particularised allegations is not a bare denial and does not offend the rules of pleading; a defendant is entitled to plead a fairly arguable defence.
Court orders
#- 1.Appeal allowed to the extent that the respondent's defence be amended by striking out the second sentence in paragraph 2 of Karanja's defence to the counterclaim
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment: held Order XVI rule 6 does not deprive a plaintiff of jurisdiction to bring a fresh suit after dismissal for want of prosecution; a counterclaim is a fresh suit; ordered striking out the second sentence of paragraph 2 of the respondent's defence and no order as to costs.
In my opinion the learned judge was wrong in holding that Order XVI rule 6 had no application to the suit, or that there could be no proceedings in court concerning a suit which had already been determined by the same court.p. 3
Agreed with Madan JA and the proposed order; added observations that striking out a defence is highly discretionary, distinguished cause of action from proceedings, and that a counterclaim is of itself a suit.
I think that the striking out of all the litigant's defence or part thereof, is a highly discretionary exercise; and providing the filed pleading is not clearly irrelevant, scandalous or the like, upon an application so to do, the court must itself reflect upon two questionsp. 3
- On appeal from
- High Court
- Suit No 2640 of 1979 (ruling on striking out defence to counterclaim); related suit No 1104 dismissed June 10, 1978
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory ruling of the High Court
Relief refused
#Striking out paragraph 3 of the respondent's defence as a bare denial
The respondent had denied specific allegations in the counterclaim and particularised one; a specific denial is not a bare denial and the defence stands some chance of success
Respondent's inequity argument based on Noor Alam's release from his guarantee
That issue was not before the court in this appeal
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The dismissal of a suit under rule 6 for want of prosecution is not intended to deprive the court of jurisdiction to entertain the same suit again as a fresh suit, nor is it intended to deprive a plaintiff of his cause of action in that suit which is not extinguished.
A counterclaim is a fresh suit, and the defendant instituting it becomes plaintiff for all intents and purposes.
A defendant is entitled to a reasonably liberal view of his defence as a pleading so that the door of justice is not shut in his face.
I would allow this appeal to the extent of ordering that the respondent's defence be amended by striking out the second sentence in paragraph 2. I would make no order as to costs.
Issues in the judgment
#The defence to counterclaim is headed 'Defence of James Karanja the Second Defendant in suit No 1101 of 1974' while the proceedings described concern Suit No 2640 of 1979; the suit number 1101 of 1974 in the pleading heading appears inconsistent with the suit number given in the narrative.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Ltd v James Karanja [1981] KECA 25 (KLR)", Case Analysis (1981). Civil Appeal (from High Court Suit No 2640 of 1979 ruling of Nyarangi J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/25/eng@1981-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.