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Court of AppealPartially AllowedCivil Appeal No. 11 of 2016· [2017] KECA 633 (KLR)

County Government of Kilifi v Mombasa Cement Limited [2017] KECA 633 (KLR)

Court of Appeal of Kenya
31 March 2017
3,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In Kenya, a defendant can counterclaim over completely unrelated matters in the same lawsuit, and courts can't reject that counterclaim without a formal application.

What this practically means

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Executive summary

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The respondent, Mombasa Cement Limited, sued the County Government of Kilifi in the Environment and Land Court at Malindi seeking a permanent injunction and a declaration concerning a perimeter wall erected on Plot MN/III/291/2, the suit land. The County counterclaimed, seeking to restrain the respondent from constructing the wall on an adjacent parcel, MN/III/289/290 (LR No. 4391/MN/III), alleging the respondent lacked approvals under the Physical Planning Act. Angote, J. struck out the County's application and declined to issue any injunction over the adjacent land, holding that the counterclaim could not amount to a cross-suit because the respondent's plaint made no mention of the adjacent land, and that a distinct suit was required. The Court of Appeal allowed the appeal in part. Applying the plain words of order 7 rule 3 of the Civil Procedure Rules, endorsed by the Indian Supreme Court in Jag Mohan Chawla and Halsbury's Laws of England, the Court held that a defendant may counterclaim on any right or claim, even on a different subject matter, to avoid multiplicity of suits, subject to the court's discretion to disallow an inconvenient counterclaim on the plaintiff's application. The Court found the Judge's discretion was exercised on faulty reasoning, including an incorrect finding of fact on who introduced the adjacent land into the pleadings, and that the Judge dealt prematurely with the merits of the counterclaim without any application to disallow it. The finding that the counterclaim could not amount to a cross-suit was set aside, but the injunction prayer was not pursued, the wall having been completed, and the Court made no order as to costs.

Key legal issues

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01

Whether a counterclaim must relate to the subject matter of the original suit to amount to a cross-suit

Holding

It need not. Order 7 rule 3 gives a defendant carte blanche to counterclaim on any right or claim, whether or not connected with the plaintiff's cause of action, so as to avoid multiplicity of suits.

Reasoning

The court read order 7 rule 3 plainly and found nothing in it requiring the counterclaim to relate to the original subject matter. It endorsed the Indian Supreme Court's reading of an equivalent provision in Jag Mohan Chawla and Halsbury's definition of a counterclaim. The rationale is expedition and the avoidance of multiplicity of proceedings, enabling the court to pronounce final judgment on both the claim and the counterclaim in one suit.

p. 4
02

Standard for appellate interference with the exercise of judicial discretion

Holding

A Court of Appeal will not interfere with a judge's exercise of discretion unless the judge misdirected himself, acted on wrong matters, or was clearly wrong in the exercise of discretion resulting in injustice.

Reasoning

The court invoked Mbogo v Shah and Matiba v Moi as stating the settled test. Applying it, the court found the Judge misdirected himself in holding that a counterclaim could not amount to a cross-suit and in making an incorrect finding of fact that the appellant, rather than the respondent, introduced the adjacent suit land into the pleadings; further, the Judge dealt with the merits of the counterclaim prematurely and without any application to disallow it.

p. 4
03

Whether the trial court may determine an interlocutory injunction application on the merits of the counterclaim before trial

Holding

No. It was premature for the learned Judge to go extensively into the merits of the counterclaim, especially where no party had applied to disallow the counterclaim.

Reasoning

Within the cross-suit created by the counterclaim, the Judge was bound to determine the appellant's injunction application on its merits, but without venturing prematurely into the merits of the counterclaim itself. Order 7 rule 3 permits rejection of a counterclaim only on the plaintiff's application, and no such application had been made. The premature merits enquiry was therefore an error in the exercise of discretion.

p. 5

Legal principles established

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  • A defendant may raise a counterclaim on any right or claim against a plaintiff under order 7 rule 3 of the Civil Procedure Rules, even where the subject matter or cause of action is different from or unrelated to the original suit, subject only to the court's discretion on the plaintiff's application to disallow an inconvenient counterclaim

Court orders

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  1. 1.The finding by the learned Judge that the appellant's counterclaim cannot amount to a cross-suit is set aside
  2. 2.No order was made on the appellant's prayer for an injunction in respect of the adjacent suit land, the appellant having abandoned it
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 rule 3
  • Civil Procedure RulesOrder 40 rules 1 and 10
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Physical Planning Actnull

Cases cited (4)

  • Sh. Jag Mohan Chawla & Another v Dera Radha Swami Satsang & Ors
    null
  • Mcfoy v United Africa Company Limited
    [1961] 3 ALLER 1172
  • Mbogo & Another v Shah
    [1968] EA 93
  • Matiba v Moi & 2 Others
    [2008] 1 KLR 670
On appeal from
Environment and Land Court of Kenya at Malindi
Civil Suit No. 239 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite the specific constitutional provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Kilifi v Mombasa Cement Limited [2017] KECA 633 (KLR)", Case Analysis (2017). Civil Appeal No. 11 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/633/eng@2017-03-31

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