Occidental Insurance Company Limited v Mtili Saidi Kajambo & 1 other

judgment on counter claim against the Claimant/ 1st Respondent by the 2nd Respondent was also entered in favour of the party against the Appellant. 5. Aggrieved by the finding of the Trial Court, the Claimant/Appellant lodged a Memorandum of Appeal dated 19/06/2024 hence this Appeal. The appeal against the Claimant/ 1st Respondent was withdrawn. The appeal is now against the award of counter-claim in favour of the 2nd Respondent against the Appellant. 6. The appeal was canvassed by way of written submissions. Both parties complied by filing their rival submissions in support of their positions. Analysis 7. Having perused through the pleadings filed and the submissions on record, the issue for determination is; a. Whether the court erred in entering judgment on counter-claim in favour of the 2nd Respondent against the Respondent. b. Who bears the costs. 8. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. (see Peters vs Sunday Post Limited [1958] EA 424 and Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123) 9. It is not in dispute that the Claimant’s/ 1st Respondent vehicle was involved in an accident. It is also not in dispute that the said vehicle was comprehensively insured by the 1st Respondent/ Appellant. Further, it is also not in dispute that the Appellant directed the 1st Respondent to take his vehicle for repair at the 2nd Respondent’s garage. It is a fact that after the insurance company declined to make good the claim, the vehicle remained at the 2nd Respondent’s garage. Someone must pay for the said storage charges. 10. The lower court ordered that the Appellant do meet the storage charges. The Appellant on appeal states that the learned Magistrate erred in law by misapplication of procedural laws in the unjust imposition of liabilities. It was submitted that Order 7 Rule 3 of the Civil Procedure Rules requires counter-claims to be assessed on their own merits. 11. The Appellant also faulted the court for issuing an order that the Appellant do bear the costs of the 2nd Respondent. It was prayed that the judgment of the lower court be set aside and the matter be remitted to the magistrate’s court to be considered on merits. 12. Order 7, Rule 3 of the Civil Procedure Rules provides as follows; “ A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12074/eng@2025-07-07 2

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counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.” 13. Further, Order 7, Rule 8 provides as follows; “ Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence.” 14. From the above, the counterclaim is made against the Plaintiff or any other person not in the Plaint. If a Defendant is to file a claim against a co-defendant, nothing bars the party from filing a separate law suit. This allows the affected party to file its defence to counterclaim, and that was not accorded to the Appellant. The 2nd Respondent is at liberty to file a suit against the Appellant for the storage charges, and the same shall be determined on merits. The appeal succeeds that the extent that judgment in favour of the 2nd Respondent is hereby set aside. The rest of the judgment remains undisturbed. 15. On the issue of costs, the award is discretionary. The appeal being partially successful, each party shall bear its own costs. Determination 16. In the upshot, I make the following orders: a. The Appeal is partially successful, and judgment entered in favour of the 2nd Respondent against the Appellant is hereby set aside. b. The 2nd Respondent is at liberty to file a separate suit against the Appellant c. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 7TH DAY OF JULY, 2025. ......................... F. WANGARI JUDGE In the presence of; N/A by the Appellant N/A by the Respondent Ms. Getrude, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12074/eng@2025-07-07 3

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