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Court of AppealPartially AllowedCivil Appeal No 98 of 1985

Stags Head Hotel Limited v Supaduka Nakuru Limited [1986] KECA 77 (KLR)

Court of Appeal
21 February 1986
706 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let the hotel defend Kshs 830,000 of the claim because real disputes existed, but kept judgment of Kshs 650,000 in place.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Hancox, Nyarangi, JJ A and Gachuhi, Ag JA) heard an appeal by Stags Head Hotel Limited against a ruling of Omolo, J of the High Court dated July 18, 1985, in which the High Court had set aside a default-related position in Civil Case No 146 of 1984. At the hearing, counsel for the respondent, Mr Githua, conceded that the defendant/appellant should have been given leave to defend the disputed sum of Kshs 830,000.00, as triable issues existed in relation to it, leaving only costs for determination. Counsel for the appellant urged the court to follow Pindoria Const Co v Iron etc Co (Civil Appeal 16 of 1976), where the costs of a successful appeal were awarded and High Court costs reserved. The court distinguished Pindoria on the facts, noting differences in delay, notice periods and attendance, and emphasised that an appellate court should be slow to criticise a judge conscientiously managing his list. It also construed order 50 rule 4 as requiring notice of a motion, not of its hearing, and observed the application was under order VI rule 13 rather than order 35. The court upheld judgment for the respondent for Kshs 650,000.00, set aside the portion relating to Kshs 830,000.00 and gave unconditional leave to defend that portion. It ordered the appellant to pay half the costs of the appeal and the costs of the setting-aside proceedings in any event. The appeal was allowed only to that extent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendant/appellant should have been granted leave to defend the disputed sum of Kshs 830,000.00
  2. 2.The question of costs of the appeal and of the proceedings in the High Court, including whether the case of Pindoria Const Co v Iron etc Co was distinguishable on the facts

Key legal issues

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01

Whether the appeal under order 6 rule 13 should succeed on the disputed sum

Holding

Counsel for the respondent conceded the defendant should have had leave to defend the disputed Kshs 830,000.00 as there were triable issues; the court set aside that part of the High Court order and gave unconditional leave to defend.

Reasoning

Counsel for the respondent acknowledged at the outset that triable issues existed in relation to the disputed sum of Kshs 830,000.00. Faced with this concession, the court did not need to decide the substantive merits; it upheld judgment for the undisputed Kshs 650,000.00 but gave the appellant unconditional leave to defend the balance, varying the High Court order accordingly.

p. 1
02

Notice requirements for an application for summary judgment under order 35 rule 1(3) and order 50 rule 4

Holding

The 7 days notice required is notice of the motion, not of its hearing; and in any event the application before the court was under order VI rule 13, not order 35.

Reasoning

The appellant argued the application was in substance one for summary judgment requiring 7 days notice under order 35 rule 1(3) read with order 50 rule 4. The court construed order 50 rule 4 as requiring notice of the motion rather than of its hearing, and noted the application before the court was under order VI rule 13, so the notice point did not assist the appellant.

p. 2
03

Whether Pindoria Const Co v Iron etc Co obliged the court to give the appellant costs of the successful appeal

Holding

The case was distinguishable on the facts; the respondent was awarded half the costs of the appeal and the costs of the setting-aside proceedings.

Reasoning

The appellant sought to follow Pindoria's case, where costs of a successful appeal were awarded while High Court costs were reserved. The court distinguished the facts on the dilatoriness and notice periods, noted the defendant did not even attend court, and held it should be slow to criticise a judge conscientiously managing his list. Given the concession, the respondent received half the appeal costs.

p. 2

Legal principles established

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  • An appellate court should be slow to criticise or reverse a judge who conscientiously tries to get on with his list and applies the normal rules as to hearing and attendance.
  • Order 50 rule 4 requires 7 days notice of a motion, not of its hearing.

Court orders

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  1. 1.Upheld the order of the High Court for judgment for the respondent for Kshs 650,000.00
  2. 2.Set aside that part of the High Court order relating to the balance of Kshs 830,000.00 and gave unconditional leave to defend as to that portion of the claim
  3. 3.Ordered that half the costs of the appeal and the costs of the proceedings to set aside in the High Court be paid by the defendant/appellant to the plaintiffs/respondents in any event

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
JG
majority
On appeal from
High Court of Kenya at Nakuru
High Court Civil Case No 146 of 1984
Jurisdiction invoked
First appeal to the Court of Appeal against the Ruling of the High Court at Nakuru

Relief refused

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Costs of the successful appeal to the appellant (following Pindoria's case)

The court held the case distinguishable on the facts and, counsel having conceded the main appeal, awarded the respondent half the costs of the appeal

p. 2

Costs

½ the costs of this appeal, and the costs of the proceedings to set aside in the High Court, shall be paid by the defendant/appellant to the plaintiffs/respondents in any event

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore uphold the order of the High Court for judgment for the respondent / defendant for Kshs 650,000.00, but set aside that part of it which relates to the balance of Kshs 830,000.00 and give unconditional leave to defend as to that portion of the claim.
p. 2Final orders - variation of High Court judgment
We order that ½ the costs of this appeal, and the costs of the proceedings to set aside, (which is the only appeal before us) on the High Court, shall be paid by the defendant / appellant to the plaintiffs / respondents in any event.
p. 2Final orders - costs
we should be slow to criticise or reverse a judge who conscientiously tries to get on with his list and applies the normal rules as to hearing and attendance
p. 2Deference to trial judge's case management
that provision means, in our opinion, that 7 days notice of the motion shall be given, not of its hearing
p. 2Construction of order 50 rule 4 notice requirements
To this extent, then, is the appeal from Omolo, J’s decision of July 18, 1985 allowed.
p. 2Partial success of the appeal

Issues in the judgment

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minor

The judgment refers to the parties inconsistently, describing the defendant as respondent in the final orders while the case caption lists Stags Head Hotel Limited as appellant and Supaduka Nakuru Limited as respondent.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stags Head Hotel Limited v Supaduka Nakuru Limited [1986] KECA 77 (KLR)", Case Analysis (1986). Civil Appeal No 98 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/77/eng@1986-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.