Kabuito Contractors Limited v David Mereka T/A Mereka & Company Advocates
The bottom line
#Kenya's Court of Appeal blocked a client's counterclaim in its lawyer's fee suit, ruling courts refuse permission for counterclaims rather than strike them out.
What this practically means
#Executive summary
#Key legal issues
#Distinction between rule 2 and rule 11 of Order VIII of the Civil Procedure Rules
The two rules deal with the same subject matter but different situations: rule 2 concerns plaintiff-versus-defendant counterclaims and requires an application before trial, permitting only refusal of permission to rely on the counterclaim; rule 11 concerns counterclaims joining additional parties and requires an application before reply.
The court read Order VIII as a whole. Rules 7 to 10 recognise that a counterclaim may join parties other than the plaintiff, and rule 11 caters for those situations. Rule 2 involves only two parties, and its remedy is limited to refusing the defendant permission to avail himself of the counterclaim, not striking it out. The respondents wrongly invoked both rules.
Applicability of section 49 of the Advocates Act to the respondents' cross-appeal
Section 49 applies only in the absence of an agreement between advocate and client on remuneration, or where the client merely disputes the reasonableness or quantum of costs. Since the defence alleged an express fee agreement and a total denial of liability, the section did not apply and the trial Judge rightly rejected prayer No. 2.
The defence pleaded that fees were agreed and capped, amounting to a total denial that any fees were owed, not merely a challenge to reasonableness or quantum. The cross-appeal therefore failed.
Interference with a trial Judge's discretion on whether a counterclaim could be conveniently disposed of
The appellate court will not interfere with a trial Judge's exercise of discretion absent breach of the principles in Mbogo v Shah.
The appellants contended the Judge could not conclude on the material that the counterclaim could not be conveniently disposed of in the suit, but the court found no shown breach of the established principles on appellate interference with discretion.
Legal principles established
#- Rule 2 of Order VIII governs set-off or counterclaim as between plaintiff and defendant only, applies where the application is made before trial, and empowers the court only to refuse the defendant permission to avail himself of the counterclaim - not to strike it out.
- Rule 11 of Order VIII applies only where the defendant has brought in other parties in addition to the plaintiff, and the application thereunder must be made before a reply to the counterclaim is filed; the two rules deal with different situations and are not inconsistent.
- Where a trial Judge arrives at the correct conclusion but for a wrong reason, the appellate court may uphold the result while correcting the legal basis of the order.
Court orders
#- 1.The cross-appeal by the respondents is dismissed with costs thereof to the appellants
- 2.The appellants' appeal against the order of the trial Judge is dismissed
- 3.The Judge's order is amended to state that the appellants are refused permission to avail themselves of their counterclaim
- 4.The appellants' appeal dismissed with three quarters of the costs thereof to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 1451 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution/Court of Appeal jurisdiction (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabuito Contractors Limited v David Mereka T/A Mereka & Company Advocates", Case Analysis (2003). Civil Appeal No. 240 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/109/eng@2004-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.