JULIANNE ULRIKE STAMM v TIWI BEACH HOTEL LTD [1998] KECA 24 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a plaintiff represented by a lawyer need not attend court personally, and threw out a Kshs.5 million damages award.
What this practically means
#Executive summary
#Key legal issues
#Personal presence of a plaintiff at the hearing
The dismissal of the plaintiff's claim for non-attendance was totally erroneous; a plaintiff represented by counsel need not be personally present and may prove his case through other witnesses or by argument
Order 17 rule 2(1) requires the party having the right to begin to state his case and produce evidence on the issues he must prove, but makes no reference to the plaintiff personally giving evidence. Evidence may be given by any competent witness, and a plaintiff may even prove his case by legal argument alone so long as his advocate is present to prosecute the suit. The objection taken by the defendant's counsel was an abuse of process and the judge's acceptance of it was surprising and totally erroneous.
Effect of the 1975 amendment substituting 'attend' for 'appear'
The amendment was a distinction without a difference; the decisions in Din Mohamed vs. Lalji Visram and Finaughty vs. Prinsloo still stand good
The material amendment introduced by Legal Notice Number 119 of 1975 merely substitutes the word 'attend' for the word 'appear'. The court held this substitution does not change the meaning of the former Order 9 rules 17 and 18 of the 1948 Civil Procedure Rules, so the earlier authorities on the position of a plaintiff represented by counsel remain good law.
Severability of the counter-claim from the defence
The counter-claim arose directly out of the claim and was not severable; the judge erred in hearing it independently under Order 1XB rule 4(3) after wrongly dismissing the claim
Following Doge vs. Kenya Canners, a counter-claim is not severable from the defence. Here the claim and counter-claim were clearly inter-woven: the plaintiff sought protection under Cap 301 while the defendant denied the tenancy and sought possession and damages. Having wrongly dismissed the claim, the judge could not properly determine the counter-claim as if it stood by itself without reference to the claim or the defence.
Damages for loss of user
The award of Kshs.5,000,000 as damages for loss of user could not stand; the proper claim, if any, was for trespass in the nature of mesne profits assessed on economic rental value, not on a lump sum basis
Loss of user damages are appropriate for loss of a chattel, not for being kept out of land. A landowner lawfully entitled to possession may claim mesne profits for being kept out, measured by the economic rental value of the property. Since the defendant knew the plaintiff claimed protection under the Act, any such damages could not have been assessed on a lump sum basis as the learned judge did.
Legal principles established
#- A plaintiff need not be personally present at the hearing of his suit where he is represented by duly instructed counsel; he may prove his case through other witnesses or by legal argument alone
- A counter-claim is not severable from the defence and cannot be determined independently of the plaintiff's claim
- A protected tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act can only be terminated as provided for in the Act
- Damages for loss of user are not available to a landowner deprived of possession; any claim lies in trespass in the nature of mesne profits, assessed on the economic rental value rather than a lump sum
Court orders
#- 1.Both appeals allowed with costs here and costs below
- 2.The proceedings in the superior court to proceed to hearing de novo before any other judge
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 495 of 1989
- Jurisdiction invoked
- First appeal to the Court of Appeal from the decree of the High Court (appeal as of right against the ruling of 25 October 1995 and the judgment and decree of 3 November 1995)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JULIANNE ULRIKE STAMM v TIWI BEACH HOTEL LTD [1998] KECA 24 (KLR)", Case Analysis (1998). Civil Appeal 57 of 1996 (consolidated with Civil Appeal 56 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/24/eng@1998-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.